Packer v. Chicago, L. S. & S. B. Ry. Co.

U.S. Court of Appeals for the Seventh Circuit
Packer v. Chicago, L. S. & S. B. Ry. Co., 282 F. 864 (7th Cir. 1922)
1922 U.S. App. LEXIS 2716
Alschurer

Packer v. Chicago, L. S. & S. B. Ry. Co.

Opinion of the Court

ALSCHURER, Circuit Judge

(after stating the facts as above). During the few minutes which elapsed between the time deceased had crossed over the tracks to the north side of Chicago avenue and the time of finding his body on the south side of the tracks, there is no direct evidence of his movements. Had he remained upon the north side, and there waited for the Indiana Harbor local car he was expecting, the east-bound limited train could not have struck him. He must have gone back and toward the south side of the street, and have been upon the east-bound track, or just north of its south rail, when he was struck. He was not there on the ordinary mission of *866crossing the street, but was expecting to receive from the conductor of the Indiana Harbor car a package which a son had commissioned the conductor to give him. It is evident that the Indiana Harbor local car had not yet come down to Wegg avenue, which was the westerly end of its trip, where it would switch over the east-bound track for starting back east. It was awaiting the passage of the expected east-bound limited before crossing over onto the same track, and undoubtedly it was either slowly approaching or waiting somewhere on the west-bound track until the limited had passed. It does not appear that there was a waiting station or platform at Wegg avenue. Local passengers could get on and off there, as at street intersections generally. It is evident that deceased was intent upon meeting this car, which would come down on the west-bound track and then pass to the east-bound.

The District Court evidently concluded that he was so intent upon meeting this car and upon looking after his little grandson that he was oblivious to his surroundings arjd the danger of a train approaching from the west. He surely knew that these were double tracks, on which interurban trains were likely to pass, and had he exhibited ordinary care for his own safety he would have been aware that such a /train was approaching. His alertness and keenness of vision and hearing; notwithstanding his advanced years, emphasize all the more the absence on his part of ordinary care in this situation. Evidently either the grandfather placed the child out of harm’s way, or it instinctively sought a place of safety, since it was not harmed. Such was the experience and capability of this more than ordinarily intelligent man that his manifest preoccupation or oblivion in a place of imminent danger can, in the estimation of human conduct, he attributed only to his lack of due care for his own safety, a condition which prevents recovery of damages for his resultant death.

The judgment of the District Court is affirmed.

Reference

Full Case Name
PACKER v. CHICAGO, L. S. & S. B. RY. CO.
Status
Published