Opinion of the Court. due to pass each other between Eighteenth and Twenty-Sixth Streets. There was, however, some irregularity in the passing point, for there was evidence that they sometimes passed at Thirty-First Street. The east-bound train was on time the day of this occurrence, and as the trains had not passed between Eighteenth and Twenty-Sixth Streets, they were due to pass when the deceased undertook to cross, at any moment. His position before getting off the train was on the rear end of the motor car. That position necessarily cut him off from any view of the western end of the parallel track, so that when he got off the car he was for the first time in a position to observe a train coming from the west. But before getting off he had, as shown by all the evidence, obstructed both his ability to see and hear such a train by pulling his coat collar up about his ears and his hat down over his face. The heavy rainfall added to his difficulty of seeing as well as of being seen. When he got down on the right of way he was in no danger. He might have walked between the double tracks to Twenty-Sixth Street, which was but thirty to fifty feet west and in the direction of his residence, and then crossed by a macadamized street crossing. Thus while in a place of safety he might have looked up and down the track he was about to cross. It was broad daylight, being about 5:50 P.M. on a May day. The track was unobstructed, and there was no reason, if he had looked, for not seeing the train which struck him. When on the right of way between the tracks he was in no danger. From this place he went into a place of danger, without taking the ordinary precautions required from all responsible persons who place themselves voluntarily in similar positions of danger. He made no stop to inspect the track he was about to cross, but heedlessly pursued his way, either not seeing because he would not look, or seeing and recklessly endeavoring to cross in front of the approaching train. If he was going at the rate of but three miles an hour and the car at a speed of fifteen, the car would travel just five times the distance he walked, which demonstrates that when he stepped off the car steps the car which struck him was not more than twenty Opinion of the Court. five to fifty feet away. This calculation accords substantially with the evidence of the motorman and trailman on the east-bound train, who agree in saying that he got off almost in front of the passing east-bound train. Allowing for the distance each car would overlap the rails, it is altogether likely that he was brought in contact with this passing train before he had taken more than two or three steps. How is it possible that he could have exercised his senses of sight and hearing without both seeing and hearing this approaching train? What other inference could reasonable men draw than that the deceased was so inattentive to the danger to be apprehended in crossing a railroad track as that he neither looked nor listened, and thoughtlessly pursued his way, so absorbed by his effort to shield himself against the falling rain as to take no precautions against a possible collision with a passing train? When one by his own negligence brings an injury upon himself, he cannot recover damages. The rule is well settled that a plaintiff cannot recover for an injury, although the defendant was guilty of negligence, if it appears that "the plaintiff himself so far contributed to the misfortune by his own negligence or want of ordinary care and caution, that but for such negligence or want of care and caution on his part the misfortune would not have happened." Railroad Company v. Jones, 95 U. S. 439, 442. The negligence of the servants of the plaintiffs in error in passing this Twenty-Sixth Street crossing without having the train under control, or at too high a rate of speed, or in passing at all while the passengers from the west-bound train were debarking, or in failing to give warning by sounding a gong or whistle, may have been very culpable; still it did not excuse the deceased from taking ordinary precautions for his safety. In Railroad Company v. Houston, 95 U. S. 697, 702, it was said, concerning the duty of one undertaking to cross a railway track at a street crossing, that such a person is "bound to listen and to look, before attempting to cross the railroad track, in order to avoid an approaching train, and not to walk carelessly into the place of possible danger. Had she used Opinion of the Court. her senses, she could not have failed both to hear and to see the train which was coming. If she omitted to use them, and walked thoughtlessly upon the track, she was guilty of culpable negligence, and so far contributed to her injuries as to deprive her of any right to complain of others. If, using them, she saw the train coming, and yet undertook to cross the track, instead of waiting for the train to pass, and was injured, the consequences of her mistake and temerity cannot be cast upon the defendant. No railroad company can be held for a failure of experiments of that kind. If one chooses, in such a position, to take risks, he must bear the possible consequences of failure." This language was approved in Schofield v. Chicago, Milwaukee and St. Paul Railway Company, 114 U. S. 615, which was a case where a peremptory instruction for the defendant on the ground of contributory negligence of the plaintiff was approved. If we assume that no train was due to pass the station at that time, that did not absolve the deceased from using his senses and exercising reasonable precaution against the possibility that one might pass. Elliott v. Chicago, Milwaukee and St. Paul Railway Company, 150 U. S. 245, 248, was a case where a peremptory instruction for the defendant was sustained upon the ground of the contributory negligence of the plaintiff in going upon a railway track without looking and listening. In this case the evidence established that the deceased had in broad daylight, with nothing to obstruct his view, gone upon a track with which he was familiar, with cars approaching not more than twenty-five or thirty feet away, and before he got across the track was overtaken by those cars and killed. Concerning these facts, the court said: "But one explanation of his conduct is possible, and that is that he went upon the track without looking to see whether any train was coming. Such omission has been again and again, both as to travelers on the highway and employés on the road, affirmed to be negligence. The track itself, as it seems necessary to iterate and reiterate, is itself a warning. It is a place of danger. It can Opinion of the Court. never be assumed that cars are not approaching on a track, or that there is no danger therefrom." In the case of Blount's Administratrix v. Grand Trunk Railway Company, 22 U. S. App. 129, 134, the cases we have cited. were applied and an instruction for the defendant was approved in a street crossing case. In that case it was insisted that the fact that the gate maintained at the crossing by the railway company was not lowered operated to throw the deceased off his guard and absolve him from the duty of looking and listening before he crossed the track. To this the court, speaking through Judge Taft, said: "It is undoubtedly true that the failure to lower the gates modifies the otherwise imperative duty of travelers when they reach a railway crossing to look and listen, and the presence of such a fact in the case generally makes the question of contributory negligence one for the jury, when otherwise the court would be required to give a peremptory instruction for the defendant. The fact is much more important where the traveler is driving a horse and vehicle than where he is walking, because in the former case his attention is necessarily divided between the control of the horse and observation of the track, and his reliance upon the gates and the flagman must in the nature of things be greater than in the case of a pedestrian. There is no reason why the latter should not look and listen as he approaches the railway crossing before he reaches the gates and before it may be time to lower them. The right to rely on the action of the railway company's employé in lowering the gate is not absolute. State of Maine v. Boston and Maine Railroad Company, 80 Maine, 430, 444. If it were, then a man would be justified in walking up to and over a railway crossing with closed eyes and stopped ears whenever the gate is not down to obstruct his passage. The weight to be given to such an implied invitation depends on circumstances. In this case, Blount had stood at Hoy's porch, where he could see the track for eight hundred feet. From Hoy's gate for sixty feet he walked toward the track while the train was in full view and but three hundred feet away, and was getting nearer and nearer each second. As the train passed the ice Opinion of the Court. house at a speed of fifteen miles an hour, its roar must have been heard by any one giving the slightest attention, who was not one hundred feet away. When he was six feet from the track, the train was only thirty feet from him, and in full sight, and yet he did not halt or hesitate, but rashly stepped in front of it. It was a quiet night. There was no confusion at the crossing; there were no other trains in sight. There was nothing to distract Blount's attention from the oncoming train except a self-absorption which in approaching a railway crossing is gross negligence. On these facts can reasonable men fairly reach any other conclusion than that Blount was wanting in due care in not observing his danger?" Where the facts touching a question of the negligence of the defendant, or of the contributory negligence of the plaintiff, are undisputed, and the inferences to be drawn from those facts are such as all reasonable men must draw, the question as to the effect of the facts is one of law for the court. Elliott v. Chicago, Milwaukee and St. Paul Railway Company, 150 U. S. 245, 246; Gardner v. Michigan Central Railroad Company, 150 U. S. 349; Southern Pacific Company v. Pool, 160 U. S. 438. For error in refusing the request at the conclusion of the whole evidence to instruct the jury to find for the plaintiffs in error, the case must be Reversed, and a new trial awarded. |