UNITED STATES SUPREME COURT DECISIONS ON-LINE

1. The neglect of the engineer of a locomotive of a railroad train to sound its whistle or ring its bell on nearing a street crossing does not relieve a traveler on the street from the necessity of taking ordinary precautions for his safety. Before attempting to cross the railroad track, he is bound to use his senses -- to listen and to look -- in order to avoid any possible accident from an approaching train. If he omits to use them and walks thoughtlessly upon the track, or if, using them, he sees the train coming and, instead of waiting for it to pass, undertakes to cross the track, and in either case receives any injury, he so far contributes to it as to deprive him of any right to complain. If one chooses in such a position to take risks, he must suffer the consequences. They cannot be visited upon the railroad company.

2. To instruct upon assumed facts to which no evidence applies is error.

This was an action against the Chicago, Rock Island, and clubjuris

Page 95 U. S. 698

Pacific Railroad Company, brought under a statute of Missouri which subjects a corporation to a penalty of $5,000 where death is caused by an injury resulting from "the negligence, unskillfulness, or criminal intent" of any of its officers, agents, servants, or employees whilst running, conducting, or managing a locomotive, car, or train of cars. In this case, the deceased was the wife of the plaintiff; her death was caused by injuries inflicted by the defendant's locomotive whilst the train was passing through the village of Cameron in that state. The defendant had two tracks, one main and the other a side track, which extended through a considerable portion of the village and passed south of Second Street. The tracks were separated from each other by only a few feet. The house at which the deceased resided was north of Second Street and east of Harris Street, which the tracks crossed. South of the two tracks and about ninety feet east from Harris Street was situated a building belonging to the company, called the section house, near which was a well of water. The building and well were on the company's right of way. The train was due, on the evening when the accident occurred, at half-past six, and it entered the village from the west. At that time a gravel train had been switched on the side track east of Harris Street, between the section house and the depot. Freight cars were also standing on the side track west of, but near, Harris Street. There was a plank crossing over the railway at Harris Street. When cars were not standing on the tracks there was nothing to prevent one passing in a direct or nearly direct line from the house of the deceased to the section house. Persons, in going to the well from that house, sometimes passed the road at the public crossing and sometimes on the right of way of the company east of Harris Street. The evidence disclosed by the record relating to the accident only shows that at about half past six in the evening of the 13th of March, 1872, the deceased took a pail upon her arm and left her house, and, it is supposed, started for the well near the section house. She was seen by her daughter as she left, and by the engineer only a few seconds before she was struck by the locomotive. It does not appear that she was seen by any other person after leaving the house before she was injured. When discovered by the engineer, the locomotive clubjuris

Page 95 U. S. 699

was within four feet of her. She was then on the main track of the railway, about ninety feet east of Harris Street, and was apparently passing from the track south. She was struck by the extreme end of the beam of timber running across the engine, known as the bumper, and was thrown into a ditch about ten feet from the section house. The engineer testified, that when he discovered her it was impossible to stop the train so as to avoid striking her. She died within an hour after receiving the injury.

It appears from the evidence also that the railway was in plain view from the house of the deceased, and that a train approaching from the west could be seen from it and from any point between the Harris Street crossing and the section house for a distance of three quarters of a mile. At the time of the accident there was a bright moonlight, and the headlight of the engine was burning, and the movement of the train created a loud noise. There was some conflict of evidence as to the rate of speed at which the train was running at the time and whether its bell was rung and its whistle sounded. As to the other facts stated, the evidence was all one way.

There was a verdict and judgment for the plaintiff, whereupon the company brought the case here. The substance of the charge of the court below to the jury is stated in the opinion of the Court. clubjuris

Page 95 U. S. 701