Glaria v. Washington Southern Railway Co. ( 1908 )

Mr. Chief Justice Shepard

delivered the opinion of the Court:

A motion to direct a verdict is an admission of every fact in evidence, and of every inference reasonably deducible therefrom. And the motion can be granted only when but one reasonable view can be taken of the evidence and the conclusions therefrom, and that view is utterly opposed to the plaintiff’s right to recover in the ease. Whenever there is uncertainty as regards the existence of negligence on the one hand, and of contributory negligence on tbe other, the issue must be submitted to the determination of the jury. These principles are so familiar that it is unnecessary to cite authority for them. The record does not disclose whether the motion was sustained on the insufficiency of the plaintiff’s evidence, as matter of law, to show negligence on the part of the defendant, or upon the ground that it plainly shows that plaintiff’s injury was the result of his contributory negligence. Both propositions have been maintained in support of the judgment.

The question on the first ground depends upon the proposition that the plaintiff was a mere trespasser upon defendant’s track, at a place where his crossing could not reasonably have been expected. If this be a sound proposition, the court did not err in directing the verdict. Stearman v. Baltimore & O. R. Co. 6 App. D. C. 46, 54. The defendant’s agents in charge of the train were under no duty to look out for mere trespassers upon the track at unexpected places, and owed the plaintiff, as such, no other duty than to avoid injuring him unnecessarily in case of the discovery of his danger. But we cannot concur in the view that, under the evidence, the plaintiff was such a trespasser. He was not a mere stranger undertaking to use the railway-track as a roadway, or to cross it at an unu'sual place. He was in the service of defendant’s contractor, and as such required to work in the construction of the new tracks adjacent to the one in use. The evidence tends to show that the numerous laborers in the same service had been accustomed to cross the track at the same place because there was no other direct and convenient way to go to and fro between their quarters and the place of their special employment. It tends to show that the path used by them on the West side of the track had been in use about two months, that a dry path had been made in the wet ground of the cut where the steam shovel was worked, and steps cut in the bank so that the other path could be reached by crossing the track. The laborers passed and re-passed frequently during the working hours of the day, and sometimes brought materials over it. This use was within the daily observation of the defendant’s engineers, under whose direction the work had been carried on, as well as under the less frequent observation of the railway superintendent. It tends to show that defendant’s track foreman and his gang-worked dqjly on the track at and near the place, and sometimes used the path and crossing. No objection had been made by defendant to this use by the laborers of the contractor, and no notice had been given to discontinue it.

Aside from the actual knowledge by the engineers and superintendent of the defendant, of this use of the crossing, the evidence of its general use for about two months might have authorized the jury to infer that the defendant had knowledge. It may be inferred from these facts that the plaintiff was not a mere trespasser, but a licensee by implication. The law makes a difference between the duty of the railway to such licensees, and the duty to mere trespassers, or to those who make occasional use of a railway track as a walk or a crossing at their convenience because it happens to be unfenced and unguarded. Having permitted the use of the crossing by plaintiff and his co-laborers for about two months without objection, and having cause, therefore, to anticipate its continuance until the completion of the work, it was the duty of the defendant to exercise care commensurate with the circumstances, to avoid injuring them. Baltimore & P. R. Co. v. Golway, 6 App. D. C. 143, 166; Clampit v. Chicago, St. P. & K. C. R. Co. 84 Iowa, 71, 74, 50 N. W. 673; Byrne v. New York C. & H. R. R. Co. 104 N. Y. 362, 366, 58 Am. Rep. 512, 10 N. E. 539; Swift v. Staten Island Rapid Transit R. Co. 123 N. Y. 645, 25 N. E. 378; Chesapeake & O. R. Co. v. Rodgers, 100 Va. 324, 333, 41 S. E. 732; Pomponio v. New York, N. H. & H. R. Co. 66 Conn. 528, 537, 32 L.R.A. 530, 50 Am. St. Rep. 124, 34 Atl. 491; Tutt v. Illinois C. R. Co. 44 C. C. A. 320, 104 Fed. 741, 744; Inter-State Consol. Rapid Transit R. Co. v. Fox, 41 Kan. 715, 720, 21 Pac. 797.

Under this view of the law applicable to the evidence, we think that the question of defendant’s negligence was one that ought to have been submitted to the jury.

We come now to the consideration of the question of plaintiff’s contributory negligence as matter of law. The evidence bearing on this proposition tended to show that it was about dark when plaintiff, immediately after his work had ceased, undertook to cross the track on his way to his quarters. That there was a thick fog which added to the obscurity. That there was a curve and bank not far up the track in the direction from which the train came, which limited the view of the track under ordinary conditions. Plaintiff testified positively that when he went up the steps to the edge of the track he paused, looked both ways, and listened; and that, neither seeing nor hearing the approaching train, he stepped upon the track and was immediately struck down by a tz’ain moving rapidly. It is true that where the undoubted facts and circumstances in evidence clearly show that one about to cross a railway track must inevitably have seen a coming car or train if he had actually looked in its direction, the testimony of the injured party that he looked and failed to see it coming may be rejected, and his contributory negligence declared as matter of law notwithstanding. Harten v. Brightwood R. Co. 18 App. D. C. 260, 263; Northern P. R. Co. v. Freeman, 174 U. S. 379, 384, 43 L. ed. 1014, 1016, 19 Sup. Ct. Rep. 763; Northern C. R. Co. v. Medairy, 86 Md. 168, 173, 37 Atl. 796; Reidel v. Philadelphia, W. & B. R. Co. 87 Md. 153, 159, 67 Am. St. Rep. 328, 39 Atl. 507. There was no uncertainty in regard to those circumstances in the cases cited. In Harten v. Brightwood R. Co. supra, it was said: “The track was pz’actically straight and wholly unobstructed for several hundred yards. One looking up the track for the coming car could not fail to see it, and it was not possible for the car to traverse the space along which it was clearly visible, between the time the plaintiff looked for it as she passed from one track to the other, and the moment when she stepped upon the rail and was struck by the fender attached to the front of the car.” The car in that case was a street car on a suburban line, and the injury occurred about 10 o’clock in the morning of a clear day.

The circumstances in evidence in the case at bar are different, and while it may seem unlikely that the plaintiff could, in fact, have paused and looked and listened, with ordinary care, without seeing or hearing the coming train, it cannot be justly assumed, with the requisite certainty, that he must have seen or heard it had he done so.

In the absence of such certainty the question of his contributory negligence was one for the determination of the jury.

It was error to direct the return of the verdict for the defendant, and the judgment must be reversed, with costs, and the case remanded for another trial.

Reversed.