Steele v. Chicago & Grand Trunk Railway Co.

(after stating the facts). The plaintiff’s position is thus stated in her brief:

“The defendant was negligent, through the flagman, in signaling the parties to advance and go upon the track under the circumstances, for the flagman was in a position and so near the rear section that he must have known that another train, or section of a train, was rapidly advancing on the crossing. A glance at the rear of the retreating train would have satisfied or informed him that there was trouble with the train, and, as a flagman, he was bound to know whether the track was clear, and it was safe for the parties to pass over the track, before he gave the signal to advance.”

There is no evidence, nor was it contended in the oral .argument, that the flagman had actual knowledge that the second section was approaching when he swung his lantern north and south. Such an act would not only be gross negligence, but would be criminal. It was argued by counsel for plaintiff, upon the oral argument, that it was the absolute duty of the flagman to know that the track was clear before signaling, and that, although he acted prudently and with due caution, still the defendant is liable. This would result in holding the defendant to be an absolute insurer of safety when it has a flagman, and to establish a liability without negligence. In other words, it would establish the rule that, when one invites another upon or across his premises, he guarantees their safety. There is no such rule, nor was this ■case submitted to the jury upon any such theory. The *524sole basis of the verdict is that he did not use due diligence to ascertain whether the track was clear, and gave the signal without first performing that duty. In determining this question, the court, as well as the jury, must consider the situation as it appeared to the flagman at the time. It is easy afterwards to see how most accidents could have been avoided, but that is not the question, but, rather, could the accident have been avoided by the exercise of reasonable care and diligence?

The flagman did all in his power to give notice of the approach of the rear section as soon as he discovered it. Should he, in the exercise of common prudence, have discovered it earlier? Upon the answer to this question depends the defendant’s liability. He swore positively that he immediately discovered the trouble, and gave warning. If it were the fact that he saw the second section coming, and gave no warning, then the negligence, if any, would be in failing to give a signal, instead of giving one. The duty to give the signal was imperative the moment the danger was discovered. The flagman did in fact discover the rear section approaching before it reached the crossing, and immediately thereupon vigorously signaled. Mr. Steele’s horse had not then reached the track, nor had he reached it when the first car of the rear section was upon the crossing, but he was very near it. He reared and plunged to the east, and the cart was thrown against the second car. No one places the distance between the two sections at the crossing in excess of 100 feet. The time was so short that Mrs. Donaldson said it was a second or two. According to Mr. Donaldson, the flagman had swung his lantern two or three times as a warning after the first section passed, and before the second came. Whether Mr. Steele, in driving rapidly towards the crossing, acted upon the signal supposed to have been given, or upon the natural supposition that the train had passed, as did Mr. Donaldson, is not, of course, known. One would naturally pre*525sume that the entire train had passed. Mr. Donaldson testified that he would not wait for a signal after the train had passed. But is it not a fair inference that if he had seen the signal, as did Mr. and Mrs. Donaldson, he could have stopped his horse in time to avoid the accident, provided he had him under proper control?

The flagman had been there for two years. No such accident as the parting of a train had ever occurred there. To hold the flagman guilty of negligence under these circumstances is to say that it was his duty to look out for an unusual and unexpected accident; to determine instantly that the train had parted, and that the rear section was immediately following; to see that there were no lights upon the rear car of the first section, and determine whether it was an unlighted caboose or a freight car; to then look to the west, and if he saw a light, which to him would appear stationary until very near him, to determine that it was upon the caboose, and that it was approaching; and then to swing his lantern as a signal to travelers upon the highway, whom he cannot see, and of whose presence he may be ignorant; and to do all this in a night so dark that objects can be seen but a few feet distant. The law of common prudence and care does not require such instantaneous action of mind and body, nor “does it require men to be on a constant lookout for da,ngers that cannot be expected to exist.” Grand Rapids & Ind. R. Co. v. Martin, 41 Mich. 670. In my judgment, the flagman acted with all the promptness and care which the law requires. This was one of those unfortunate and distressing accidents which could not well be foreseen, which no one could be expected to anticipate, and for which no blame attaches to any one.

An important question is raised upon the pleadings, which, in my view of the case, it is unnecessary to discuss.

. The judgment-should be reversed, and, since no differ*526ent state of affairs can possibly be shown upon a second trial, none should be ordered.

The statement of facts prepared by Mr. Justice G-rant covers the main features of the case. It is only necessary to add that there was evidence for the jury that the flagman swung the lantern north and south, and that this was intended for a signal to advance. Mrs. Donaldson testified: “As we approached the crossing, I saw the flagman swinging the lantern, and then we stopped, and heard a train coming; and afterwards, after the first section passed, we saw him there, swinging the lantern north and south.” The flagman testified that the signal which he was accustomed to give to indicate that it was safe to advance was to .swing his lantern north and south.

1. It was insisted, on the argument that the declaration was defective in that it failed to aver that the deceased relied upon the signal to advance. The declaration contained the averment:

“The said Newman Steele was then and there negligently and carelessly signaled by said flagman * * * to pass over said track, as said track was clear, which the said Newman Steele then and there attempted to do, by going upon said track in a careful and prudent manner at said crossing; and while on said track at said crossing, and by reason and on account of such carelessness and negligence on the part of said defendant as aforesaid, the said Newman Steele was run into.”

This certainly states, by inference, that Newman Steele was on the track because of this negligence of defendant; and, while the manner of stating the fact was open to objection by special demurrer, the defect was not pointed out in this manner, or in any other manner, specifically, on the trial. The nearest defendant’s counsel came to making the point was during the taking of testimony, when an objection was made as follows: “We object to this under the declaration, because there is nothing in *527the declaration that would indicate negligence on the part of the defendant company in giving, him-the signal to come on, or in omitting to -give the signal for him to stop, before the second section arrived.” This gave no-intimation that defendant claimed any fault in the averment that deceased relied upon the signal. The defect,, if it had been pointed out, was subject to amendment, and the judgment ought not to be disturbed on this ground.

2. In our opinion, there was a question for the jury in this case. Certainly great care was due from the flagman, and to be expected by the public. So dangerous is an attempt to cross a railroad track without an assurance of safety that it is held negligence, as a matter of law, for a traveler to make the attempt without .assuring himself, by the use of his senses, that the way is clear. The very purpose of maintaining a flagman is to give this assurance to the traveler, and the care required should be measured in view of the consequences likely to result from an error in judgment, or want of the most accurate attention. In this case it appears that the flagman was experienced; that he had never known a freight train to pass without a caboose in the rear, and at night there was always a red light in the rear of the train, and white lights at the side of the caboose. In fact, it is unnecessary to say that the maintaining of this rear light is essential to the safety of the trainmen and the property of the company. These lights were wanting on that portion of the train which passed the flagman. By the defendant’s theory, the gap between the two sections of the train was only about 100 feet. I think we cannot say, then, as a matter of law, that if the flagman had looked he would not have seen the light, or that he was not negligent in failing to discover that these lights were missing from that portion of the train that had passed, or that he was in the exercise of such care as the occasion and circumstances demanded, in giving assurance of *528safety to the deceased by the signal to .advance. It is' said in the brief - of defendant’s counsel that it was the duty of the flagman to look in the direction from which the train had come, not where it was going. There is strong ground for the inference that, if he had looked in that-direction, he would have seen the approaching detached section. But, in our view, his duty did not consist wholly of looking in the one direction. It was certainly his duty to satisfy himself that the train had passed, before signaling the deceased to approach; and, in looking to ascertain this, he would most naturally have looked for the rear light. If this was missing, what would its absence suggest, and what was then the-duty of the flagman?. These, we think, were questions for thé jury.

We find no error. Judgment affirmed.