Schuyler Nat'l Bank v. Gadsden, 191 U.S. 451 (1903)
Case details
Bluebook Citation
Schuyler Nat'l Bank v. Gadsden, 191 U.S. 451 (1903)
Full caption
SCHUYLER NATIONAL BANK v. GADSDEN.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
Dec. 7, 1903
Dissent
Brewer (Justice)
SCHUYLER NATIONAL BANK v. GADSDEN.
ERROR TO THE SUPREME COURT OF THE STATE OF NEBRASKA.
No. 50. Argued November 3,1903.—Decided December 7,1903.
Where usurious interest has been paid to a national bank the remedy afforded by sec. 5198, U.S. Revised Statutes, is exclusive and is confined to an independent action to recover such usurious payment. Hazettine v. Central National Bank, 183 U. S. 118.
A claim that usurious interest has been paid on a debt to a national bank secured by mortgage on real estate given by the debtors to an individual for the benefit of the bank cannot be asserted under the state law in foreclosure proceedings in the state courts.
Where the state law does not forbid an agent from taking security for the benefit of a principal the taking of real estate security by the president of a national bank for a debt due to the bank is in legal effect the taking o such security by the bank itself. e provisions of the United States statutes forbidding the taking of real es ate security by a national bank for a debt coincidently contracted do not operate to make the security void but simply subject the bank to e called to account by the government for exceeding its powers. Bogan County v. Townsend, 139 U. S. 67.
On August 8, 1890, George Thrush, one of the defendants in error, being indebted to the Schuyler National Bank, one of the plaintiffs in error, for money then and theretofore lent, executed a note to the bank for the sum of $5000, payable six months after date. As collateral security for the payment of this note, Thrush and his wife executed a note and mortgage for $5000 to one Sumner, who was at that time the president of the bank. The collateral note and mortgage were delivered to the bank and by it retained. The note made to the bank was renewed by the bank from time to time, and various payments of interest and on account of the principal were made to the bank, the principal sum thereby being reduced in March, 1894, to $3000. In that month and year a new note was executed to the bank for the principal sum then due and interest, in all, $3229. No money dealings were had at any time between either Thrush and his wife and Sumner individually.
James Gadsden, one of the defendants in error, sued Thrush and his wife in a Nebraska court to foreclose an asserted mortgage on real estate. Junior encumbrancers of record were made parties defendant, among them being Sumner, to whom the mortgage for $5000, securing the collateral note previously referred to, had been executed. He answered, and by cross-petition asserted the lien of the mortgage, which he alleged was made to him as trustee, for the benefit of the Schuyler National Bank; he prayed foreclosure of such lien and the payment of the indebtedness to the bank, stated to be $3229 and interest. The Schuyler National Bank was subsequently made a party defendant; and, by answer and cross-petition, claimed the benefit of the mortgage to Sumner, securing the indebtedness just stated, and joined in the prayer for foreclosure. Separate answers, similar in tenor, were filed on behalf of Thrush and his wife, in which were averred, in numerous paragraphs, many payments to the bank of usunou interest during a period of five years, and in substance it was prayed that the amount of such payments might be deducted p. 453from the principal sum claimed by the bank to be due. In each of the answers was contained the following paragraph:
“That the said note of $5000 of the defendants George Thrush and Mattie N. Thrush, together with the mortgage securing the same, were not executed and delivered to said William H. Sumner upon any consideration whatsoever, but the same are simply held by said defendant as collateral security to the amount owing by the defendant, George Thrush, on the said indebtedness now being evidenced by said $3229 note, in this, that the said note of $5000 and the mortgage securing the same were executed and delivered by this defendant and Mattie N. Thrush to said Sumner for the purpose that said Sumner might protect therewith said bank on account of the indebtedness of said George Thrush to said bank, and said note and mortgage were accepted by said Sumner with the knowledge and consent of said bank, and because said bank refused to take said mortgage and said Sumner in nowise protected said loan or advanced any money thereon and at the time of the maturity thereof, by virtue of the premises and the payments of usurious and illegal interest made thereon, as aforesaid, there was due and owing, after deducting the payments made upon the principal and the said payments of usurious interest, the small balance, to wit, of $252.20, and for the aforesaid balance the said defendant Sumner is entitled to a lien upon said premises under and by virtue of said mortgage and promissory note of $5000.”
A reply was filed to these answers. It was therein stated in substance that most of the alleged usurious interest had been paid to the bank more than two years before the commencement of the action, and that the remaining interest payments were not in excess of the rate allowed by law to be contracted for. The pleading concluded with the claim “that this court 1 as no jurisdiction in this action to consider the question raised m.said answer to each and every item of interest mentioned in said answer as paid to said Schuyler National Bank; that said items are not proper items of set-off or counter-claim and p. 454cannot be adjudicated except in a suit brought expressly for that purpose under the provisions of section 5198 of the Revised Statutes of the United States.”
A decree was entered determining the priority of liens between the respective lienholders and providing for a foreclosure. Among other things it was adjudged that the mortgage to Sumner was executed and delivered for the benefit of the bank, and that the bank was entitled to the proceeds of the note and mortgage. As to the defence of usury set up in the answers it was decided that, as the transaction was one with a national bank, it was governed by the laws of the United States, and, therefore, recovery by way of set-off of the usurious interest alleged to have been paid was refused. Recovery of the interest embraced in the claim of the bank was, however, denied, and judgment was entered only for the principal sum found to be due and owing to the bank.
On appeal, the Supreme Court of Nebraska reversed the judgment of the District Court in the particular just noticed, and remanded the cause with directions “to ascertain the amount of money advanced to Thrush by the Schuyler National Bank, deduct therefrom all payments, whether of principal or interest, and award foreclosure for the remainder, if any.” 56 Nebraska, 565. On a rehearing, the appellate court reaffirmed its previous decision. 58 Nebraska, 340. Thereupon a writ of error was allowed from this court, which was subsequently dismissed for want of jurisdiction. 179 U. S. 681. Subsequently the state District Court entered a judgment in conformity with the mandate of the Supreme Court of Nebraska, and such judgment was affirmed on appeal. 63 Nebraska, 881. The present writ of error was thereupon allowed.
Mr. Charles J. Phelps for plaintiff in error:
The penalties imposed by §§ 5197, 5198, U.S.Rev. Stat., are exclusive. F. & M. Bank v. Deering, 91 U. S. 29. A national bank may take real estate for a past due debt; State Nat.
Argument for Defendants in Error.
Bank v. Flathers, 45 La. Ann. 75; or present or future debts; Winton v. Little, 94 Pa. St. 64. No one but the government can complain. Bank v. Whitney, 103 U. S. 99; Union Nat. Bank v. Matthews, 98 U. S. 621; Bank v. Haire, 36 Iowa, 443; Swope v. Leflingwell, 105 U. S. 3; Reynolds v. National Bank, 112 U. S. 405; Fortier v. National Bank, 112 U. S. 439; Wheney v. Hale, 77 Missouri, 20. The debt is the claim, the mortgage is a mere incident. Webb v. Hoselton, 4 Nebraska, 318.
Estoppel must be pleaded. B. & M. R. Co. v. Harris, 8 Nebraska, 140. To constitute equitable estoppel it must appear the facts were known to the party against whom it is urged and unknown to the party urging it. Nash v. Bakes, 58 N. W. Rep. 706; Bigelow on Estoppel, 570, 669 et seq.
In Haseltine v. Bank, 183 U. S. 118, it was held that usurious interest could not be set off in an action on the note.
Mr. George H. Thomas and Mr. Frank Dolezal for defendants in error submitted:
There is no Federal question. Under the facts in this case the remedy for usury paid is not under the Federal but the state statute. Exeter National Bank v. Orchard, 39 Nebraska, 485.
By the Federal statute, a national bank is forbidden to loan money on real estate security. While this inhibition will not invalidate a mortgage on lands given to such a bank nor prevent its foreclosure, and the Federal government alone may forfeit the charter of the bank, it certainly will not be questioned, however, that it is the duty of the bank to honestly observe this inhibition; that it is the duty of the courts to so construe the statute that an honest observance will be compelled. In addition to the plain legal phase of this case, it seems equally plain that the bank should be so held, that when the government brings process to enforce the statute the bank cannot evade it by proving that it took no mortgage on land, and where the State as to that very mortgage, attempts ^o enforce its remedy for usury say that it is protected by a privilege p. 45645è OCTOBER TERM, 190â.
given by the very statute which it violated, and under which it claimed as against the government it did not act. A construction of the statute which would permit such double dealing is not to be seriously considered as proper in a court of justice.
Mr . Justice White , after making the foregoing statement, delivered the opinion of the court.
The question for decision is, Did the Supreme Court of Nebraska rightly decide that the controversy concerning usurious interest paid was to be governed by the statute of Nebraska on that subject and not by the laws of the United States on the same subject, as expressed in section 5198 of the Revised Statutes? We say this is the sole question, because it is undoubted that if the rights of the parties are to be determined by the laws of the United States, the ruling below was wrong. This results from the prior adjudications of this court holding that where usurious interest has been paid to a national bank, the remedy afforded by section 5198 of the Revised Statutes is exclusive, and is confined to an independent action to recover such usurious payments. Haseltine v. Central National Bank, 183 U. S. 132, and cases cited. If, on the other hand, the controversy is governed by the local law of Nebraska, then the construction and application of that law made by the court of last resort of the State is binding.
In fact, this is not controverted and could not be, since the Supreme Court of Nebraska conceded that if the contention as to usurious interest ought to he determined by the laws of the United States, the conclusion which the court reached was erroneous. That court, however, held that the rights of the parties were to be measured by the law of the State instead of the law of the United States, because the collateral mortgage was not made, eo nomine, to the bank, but to an individual. This view was deemed to be fortified by the suggestion that, as the collateral note was secured by mortgage on real estate, p. 457it could not under the laws of the United States have been lawfully made in favor of a national bank. The collateral note and mortgage, it was, therefore, intimated must be assumed to have been executed to an individual to avoid the effect of the laws of the United States and the consequent knowledge which would have been conveyed to the proper officers of the United States that the bank was violating the law.
The reasoning by which the judgment of the Supreme Court of Nebraska was controlled is, in our opinion, erroneous. The court did not hold that, because the collateral mortgage was taken in the name of an individual, it could not be enforced by the bank under the law of Nebraska, but simply held that, although it was enforceable by the bank, the remedy as to the usurious interest was governed exclusively by the state law, upon the theory that the transaction was not with the bank. But the usurious interest had all been paid, not to the individual upon the collateral note, but to the bank upon the principal obligation held by it. It was this interest so paid to the bank on the principal note held by it which was in effect imputed so as to fix the amount due. The result of this was to treat the transaction as an individual one in order thereby to exclude the law of the United States, and then at once to treat it as a bank transaction for the purpose of ascertaining and imputing the sums of usurious interest which had been paid. This was to administer the rights of the parties upon distinct and wholly inconsistent theories. Either it was an individual transaction or it was not. It could not in reason have been at one and the same time both the transaction of the bank excluding the individual and a dealing between individuals excluding the bank. As the usurious interest for which a remedy was afforded had been paid to the bank, in dealings by the bank with its debtor, and as the necessary effect of the judgment below was to reduce the debt due to the bank by allowing the imputation of the sum of the usurious interest, we are of opinion that the controversy was governed by the laws of the United States and not by the law of the State of Nebraska.
Nor do we-think the suggestions made in the opinion of the court below respecting the power of a national bank under the laws of the United States to accept real estate security operate in any way to modify the conclusion we have just expressed. It is not contended that under the law of Nebraska an agent, acting in his own name, may not take security for the benefit of a principal, or that there is or could be any valid statute of the State of Nebraska discriminating against national banks, and depriving them of the benefit of transactions so consummated. This being true, it follows that the taking of real estate security by the president of the bank in his individual name, for the benefit of the bank, was in legal effect but the taking of security by the bank itself. Now it is no longer open to controversy that the provisions of the statutes of the United States forbidding the taking of real estate security by a national bank for a debt coincidently contracted do not operate to make the security void, and thus enable the individual who has contracted with the bank to defeat recovery, but simply subject the bank to be called to account by the government for exceeding its powers. In Logan County v. Townsend, 139 U. S. 67, the rule on this subject, as settled by the previous authorities, was thus stated by the court, speaking through Mr. Justice Harlan (p. 76):
“In National Bank v. Matthews, 98 U. S. 621, it appeared that a national bank loaned money upon the security of a note and a deed of trust of lands, both of which were assigned to it. The statute declared that a national banking association could loan money ‘on personal security,’ and could purchase, hold and convey real estate for certain named purposes, ‘and for no others,’ among which was not included the securing of a present loan of money by a deed of trust or mortgage on rea property. The court, while assuming that the statute, by clear implication, forbade the bank from making a loan on real estate, refused to restrain the bank from enforcing the deed of trust. The decision went upon these grounds: That the bank parte with its money in good faith; that the question as to the vio a p. 459191 U. S. Justices Bro wn and Brewer , dissenting.
tion of its charter, by taking title to real estate for purposes unauthorized by law, could be raised only by the government in a direct proceeding for that purpose; and that it was not open to the plaintiff in that suit, who had contracted with the bank, to raise any such question in order to defeat the collection of the amount loaned. If any doubt existed as to the scope of the decision in that case, it was removed by National Bankv. Whitney, 103 U. S. 99, where it was held that the right of a national bank to enforce a mortgage of real estate taken by it to secure indebtedness then existing, as well as future advances, could not be questioned by the debtor, and that a disregard by the bank of the provisions of the act of Congress upon that subject only laid the association open to proceedings by the government for exercising powers not conferred by law.”
It follows from the foregoing reasons that the Supreme Court of Nebraska erroneously determined the rights of the parties by the rule of the state law, when it should have applied the law of the United States.
The judgment of the Supreme Court of Nebraska is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.
Mr . Justice Brown , with whom was Mr . Justice Brewer , dissenting.
I am constrained to dissent from the opinion of the court in this case.
The facts, concisely stated, are as follows: George Thrush executed a note to the bank for $5000, payable in six months. At the same time Thrush and wife executed a collateral note and mortgage for the same amount to Sumner, president of the bank. This note and mortgage, given partly for an antecedent and partly for a contemporaneous debt, were delivered
to the bank and retained by it.
The note made to the bank was renewed from time to time,
Justices Bro wn and Br ewer , dissenting. 191 U.S.
and various payments of interest and principal were made, and the principal sum thereby reduced, in March, 1894, to $3000. At that time a new note was executed to the bank for the principal sum due and interest, namely, $3229. No dealings were had at any time between Thrush and wife and Sumner individually.
Suit having been begun by Gadsden to foreclose a prior mortgage, and Sumner having been made a party as junior encumbrancer, he answered, and by cross petition asserted the lien of the mortgage, which he alleged was made to him as trustee of the bank. The bank being also made defendant, filed an answer and cross-petition, claiming the benefit of the mortgage to Sumner.
It is clear that there was but one actual debt. The question is, whether, in asserting its right to foreclose the mortgage made to Sumner individually, it must not submit itself to the laws of the State affecting usury; in other words, whether, in the foreclosure of a mortgage created under the laws of a State and executed by one citizen of a State to another, its obligations are to be determined by state law or Federal law. Congress forbids such a mortgage; the State permits it. There can be no doubt that the bank caused the mortgage to be given to Sumner on account of the law forbidding national banks from receiving security by way of mortgage upon real estate, and to obviate any difficulties which might be interposed either by the mortgagor or by the government, by taking the mortgage in the name of the bank.
Had the mortgage expressed upon its face the exact truth, namely, that it was given for the benefit of a national bank, and partly, at least, for the security of a contemporaneous debt, it would have fallen within the ban of the Federal statute. It is true the state law permitted it, but accompanied it with a forfeiture of the entire interest if usury were taken. The question is whether, in enforcing this mortgage, which the bank was prohibited from taking in its own name, it may claim an exemption from the usury laws of the State. So long as the p. 461191 U. S. Syllabus.
dealings were solely between the bank and Thrush, and payments were made upon the bank note in question, the transaction with regard to usury was governed by the Federal law. But in case the bank elected to foreclose the mortgage, I think it took the benefit of it cum onere. He who seeks equity must do equity. It could not take the benefit of the mortgage to Sumner, and claim a right to foreclose for the amount due without at the same time admitting that the payments which had been made were made upon a debt secured by the mortgage, and subject to the disability of the state law. As was justly said by the Supreme Court of Nebraska: “It would be highly unconscionable to permit a person to give a contract a false form to evade the burdens which would follow from its true expression, and then permit him to show the truth as against the form to evade the burdens caused by a contract in the form which has been so chosen.” The bank ought not to be permitted to blow hot and cold in the same transaction. If it claimed the benefit of a mortgage made to an individual, it should take it with such burdens as would rest upon it if the transaction had originally been what it was represented to be upon its face. The opinion of the court suggests an easy method by which the prohibition of the Federal statute against the lending of money upon real estate security may be successfully evaded without the slightest danger to the bank.
BALTIMORE & POTOMAC R. R. CO. v, LANDRIGAN.
error to the court of app eals of THE DISTRICT OF COLUMBIA.
No. 71.' Argued November 10,11,1903.—Decided December 7,1903. In the absence of evidence to the contrary there is a presumption that one
who was killed while crossing a railroad track at night stopped, looked and listened before attempting to cross the track. Where it appears that it was customary to keep the gates at a railway cross-
ing down during the night without regard to the approach or presence of cars, trains or locomotives, the fact that they are down is not of itself a
warning of the presence of danger to one acquainted with such custom, while crossing the track at a time when the gates were generally down. Where it is an issue in the case whether a man was killed at a crossing by
a regular train which he should know was approaching at about that hour, or by a runaway car of which he had no knowledge, and there is evidence on such issue from which reasonable men might draw different conclusions, it is not error to leave it to the jury to determine whether or not it was a want of ordinary or reasonable care and prudence for deceased to attempt to cross the track at the time and under the circumstances, the jury being charged that their verdict should be for the defendant if they found that he had been killed by the regular train.
This action was brought under the death statute of the District of Columbia for damages for the death of the husband and intestate of defendant in error. The death was the result of injuries alleged to have been caused by the negligence of the plaintiffs in error. The negligence is alleged to have consisted in the insufficient coupling of the cars of the plaintiffs in error, whereby one broke loose from the others and ran over the deceased, in not equipping the car with good brakes, and not having upon it a light sufficient to give warning of its approach. The answer was not guilty.
The case was tried to a jury, which returned a verdict in favor of the ‘ defendant in error in the sum of $6500. This amount was agreed to as correct if the jury should find on the issues for the defendant in error.
Judgment was entered for that amount and costs. It was affirmed on appeal to the Court of Appeals of the District.
The testimony is somewhat long, and we think it is only necessary to give an outline of what it tended to prove to illustrate and determine the questions presented.
The plaintiffs in error operated a steam railroad in the city of Washington, District of Columbia, and maintained four tracks on Virginia avenue southwest, crossing South Capitol street. The most northerly of the tracks, called “The Reservation” or “No. 1” track, was used for freight and shifting purposes. The two intermediate tracks were used for south bound and north bound passenger traffic. The most southerly track was called the “ladder” or “lead track.” It was so p. 463called because all the tracks in the railroad yard were connected with it, and all the switches lead into it. It extended west across South Capitol street to an alley, and terminated at what was known as the property yard, where coal, ties, iron and other commodities were stored. Gates and a gateman were maintained at the crossing. There was evidence tending to show that the portion of this track lying west of the crossing was used for storing freight cars, but not passenger coaches, and that no portion lying west was used for shifting or making up the trains; but there was also evidence tending to show that it was so used as occasion required. Landrigan’s body was found at the southwest crossing, south of the “lead track,” “but nearer the track than the gate,” and there was flesh and blood alongside of the track on its south side. There was also testimony tending to show that the gates were generally kept down (one witness testified that in his experience they were always down) from ten or eleven o’clock at night until next morning, whether trains were passing or not, and persons with vehicles sometimes found it necessary to request the gateman to raise the gates, and sometimes to wake him up out of sleep for that purpose. Preceding and at the time of the accident a switching crew was making up a train of cars for the transportation of troops to the south, and it became necessary to “cut out” a Pullman car, called the “Lylete,” which was standing on one of the tracks. Immediately next to it was a tourist car. It was equipped with a Miller coupler; the Pullman with a Janney coupler. Both couplers were of the automatic type, but of different patterns, and not designed to couple together, and in order to draw the cars out on the ladder” track they were coupled together with the ordinary
link and pin coupling.
There was considerable testimony, as to the manner in which the coupling was done, and of its efficiency, which testimony it is not necessary to detail. It went to the jury with the other testimony. It is enough to say that the couplers were of unequal height, and the link could not be put in the slot of p. 464both couplers. It was put in the slot of the Janney coupler, and the other end laid on the top of the Miller coupler, “and the only thing to keep the link from slipping over the head of the pin was a shoulder around the head of the pin.” It came loose, and one of the employés, who had been in charge of the train, testified that “the couplings ‘slipped around,’ he supposed, when they were going around the curve, and that had the tendency to make them come apart ; that he supposed it was due to the slack caused by coming over the switch and ‘the ladder’ track.” The “ladder” track had a slight incline to the crossing, and when the car broke loose it started towards the crossing. An employé had tried the brake on the straight track, but when some one “hollared” that the car had broken off he “went to work on the brake again.” “It did not seem to catch hold,” he testified; and he then “dropped off the end of the car and caught the rear end of it—the head end—and at the same time Hottal (yardmaster) got on the end that he got off of ; the witness called for Wilber to help him to put the brake on, and they did all they could to stop the car, but the car had got too much start ; the brake seemed to work all right—he did not have any fault to find with the brake, only the car had gotten too much start; he first tried the rear brake and could not get that to work ; then went to the other one ; while witness and Wilber were working on the forward brake Hottal jumped on and tried to work the rear brake ; they did not succeed in stopping the car, because it had gotten too much of a start. He got off at South Capitol street on the southeast side, stood there for a second or two, and then ran after the car to see what damage it had done. There were some other cars down on the end of this track, that this car ran into, and it would not have been safe for the witness to have stayed on the car.”
The witness testified that he “did not know Landrigan personally; had seen him a number of times; he saw him after e was hurt ; Landrigan’s legs were run over, but he could not say whether it was by the car or another train; train No. 78, whic p. 465left the depot about 11:55 or 11:35, was passing there about the time of the accident; this train No. 78 is known as the midnight express for New York, and crossed South Capitol street, where Landrigan was hurt, going in an easterly direction; when witness saw Landrigan the latter was lying on the south side of the outside rail of the ‘ladder track,’ the most southerly track of the four tracks of the crossing; immediately before he saw Landrigan lying there the coach ‘ Lylete ’ passed over the crossing at South Capitol street and witness came right along behind this car, after train 78 passed, to see if the coach had done any damage down there and saw Landrigan lying there with some one around him; he went down where the car had stopped and came back and found out what the trouble was.” As to the position of the gates, he said: “He first noticed the gates when he came down there after he had jumped off the end of the car; the gates were down then on both sides of the street. He did not notice the gates before 78 passed, because he had not been down that far; he stood on the southeast side of South Capitol street until 78 passed, and then started to run down the main track, and as he ran down the track he noticed that the gates were down on both sides.” And further, “the runaway car passed the southwest crossing of South Capitol street before No. 78 reached there; it struck just the middle part of No. 78 as the train came by there; the runaway car had just about gotten across the crossing when the engine of No. 78 began to cross the crossing; it was almost at the same time.”
There was a white light in the dome of the vestibule of the runaway car or on the platform, and the effect of the light was testified to as follows by one witness:
The lamp in the dome of the vestibule of the Pullmap car had a white shade or globe underneath; it gave a bright light—you could see it all right; the lamp was inside of the door and the door was closed; the glass in the door extended about half way down, and the light shown through the glass in the door.”
vol . cxci—30
By another witness:
“That the light in the car was in the dome—in the vestibule —just on the outside of the door, over the platform; he knows there was a light in the west end of the car, the end going toward South Capitol street—which was the front end of the car the way it was moving; this light could be seen more plainly than a lamp; such lights contain two burners, are lighted by oil, and are more brilliant than a lantern; the reflector is over the top of the light; there is a kind of white shade over them; that the light in the vestibule of the car could be seen by people on the ground; it hung down low, and did not set right up in the dome; it had a shade over it, but he does not know whether you could call it a reflector or not; it was plain enough to be seen by anybody who. was on the ground.”
By another witness:
“That the light in the vestibule of a Pullman car is so located as to illuminate the platform only; that is the purpose of that light; that it does not throw the light more than a couple of feet beyond the end of the bumper of the car; it is not intended to illuminate the track.
“And thereupon, on cross-examination, said witness further testified that such a light was not intended for a locomotive headlight; that if a man was standing on the track some distance from the advancing end of a car showing such a light he would not see the source of the light, but would see the reflected light on the platform on the car; he could see the illuminated end of the car; that if he was not looking exactly in that direction this light would not attract his attention away from something else; that if he were looking up the track he could see the light if he were not too far away.”
And the evidence showed “that a Pullman car running along an ordinarily straight track at a rate of speed a little faster than a man ordinarily runs, or can run, does not make any noise.”
Landrigan was employed as a machinist and assistant boss on the night force at the round house, which was situated be- p. 467191 U. S. Argument for Plaintiffs in Error.
tween H and I streets, on South Capitol street. He had been employed for eight years. His home was north of the railroad tracks on Virginia avenue, and the most usual and direct route to his home from the round house was up South Capitol street to the southwest crossing, “then right over to the north side of Virginia avenue; and it was the way Landrigan usually took.” On the night of the accident he left the round house about 11:50 o’clock, and about twelve o’clock was found in the place and condition described in the testimony. The night “was not a clear night, nor was it a real dark night—there was no moon and there were a few clouds.” The crossing was lighted up by street lamps located on each side of the four corners, and there was an electric light in the reservation north of the tracks, and another one south and east of the tracks near the signal tower.
There was testimony to the effect that to a person outside of the gate the flagman’s box would “ obstruct the view of the ladder track to the east, but one standing on the inside of the gate on the open space, you could look straight up the track to the eastward, and there was nothing to break your view.” And also that two freight cars obstructed the view to the west.
There was no eyewitness to the accident, and Landrigan, in response to the inquiry, “How did this thing happen?” replied, “I came under the gates and something struck me, and a whole train of cars ran over me.” He died about four o’clock without making further explanation.
At the close of the testimony the plaintiffs in error moved the court to instruct the jury to find a verdict for them. The court refused, and this is assigned as error. The case was then submitted on the evidence of the defendant in error.
Errors are also assigned upon the giving and refusing of certain instructions.
Mr. Frederic D. McKenney and Mr. J. Spalding Flannery, with whom Mr. Wayne MeVeagh was on the brief, for plaintiffs in error;
Argument for Plaintiffs in Error. 191 u. S.
The railroad company cannot, as to the backing up of the -Pullman car, be held liable for doing unintentionally what it had a right to do. Stewart v. Washington & Great Falls Ry. Co., decided Nov. 4, 1903, by Court of Appeals, Dist. Gol.
There is a distinction between remote and proximate causes of an accident. The proximate cause was the passing over the tracks by the plaintiff below while the gates were down. Insurance Co. v. Boon, 95 U. S. 130; Scheffer v. Railroad Co., 105 U. S. 249; W. & G. R. R. v. Hickey, 166 U. S. 528; Cullen v. Railroad Co., 8 D. C. App. 69; Granger v. Boston & Albany, 146 Massachusetts, 276; Allerton v. R. R. Co., 146 Massachusetts, 241; Schmidt v. Phila. & Reading R. R. Co., 149 Pa. St. 337; Debbins v. R. R. Co., 154 Massachusetts, 402; Marden v. Boston & Albany, 159 Massachusetts, 393; Peck v. R. R. Co., 50 Connecticut, 379; B. & O. v. Colvin, 118 Pa. St. 230; Cleary v. R. R. Co., 140 Pa. St. 19; Sheehan v. R. R. Co., 166 Pa. St. 354; Duvall v. Michigan Central R. R. Co., 105 Michigan, 386; Douglass v. R. R. Co., 100 Wisconsin, 405; 76 N. W. Rep. 356; Railway Co. v. Schneider, 45 Ohio St. 678; Railway Co. v. Ehlert, 63 Ohio St. 320.
Either plaintiff did not look or, having looked, he disregarded what he saw. In explaining the occurrence he made no mention of having looked up and down the tracks before venturing upon them, and if his statement is to be accepted at all, it should be accepted as conclusive, and the case should also have been taken from the jury on this ground, for by his reference to a 11whole string of cars” he must have meant the express train No. 78; it was conceded that if he was injured by that train he could not recover.
If he did not look and listen before attempting to cross the tracks, or if he looked and failed to heed the warnings of his senses, he was guilty of such contributory negligence as will prevent plaintiff from recovery here. Northern Pacific R. R-Co. v. Freeman, 174 U. S. 384; Hook v. Mo. Pac. Ry. Co., 63 8, W. Rep. 360; 21 A. & E. R. R. Cas. (N. 8.) 787.
The true rule in cases of this character is that there is no presumption of law either way or in favor of either party. Beach on Contributory Negligence, § 182; Missouri Pacific v. Foreman, 73 Texas, 311; Phila., W. & B. R. R. Co. v. Stibbing, 62 Maryland, 504; Texas & Pacific v. Gentry, 163 U. S. 353.
One is not entitled to say that he was injured by the negligence of another if he, by the use of ordinary care, might have escaped the damage. Davey v. London & 8. W. Ry. Co., 12 Q. B. D. 70 (1883) ; WafceZin v. London & S. W. Ry. Co., 12 App. Cas. 41 (H. L. 1886) ; The Bernina, 12 Probate Div. 58 (1887) ; Sewdll v. N. Y., N. H. & H. R. Co., 171 Massachusetts, 302; Grand Trunk Ry. Co. v. Ives, 144 U. S. 408; Patton v. Texas Pacific Ry. Co., 179 U. S. 658.
Mr. J. J. Darlington and Mr. Charles A. Douglass, with whom Mr. Joseph D. Wright was on the brief, for defendant in error :
Thetrial judge could not have directed a verdict for defendants below. As to respective functions of judge and jury, see Douglass v. Railroad Co., 100 Wisconsin, 407 ; Grand Trunk Railroad Co. v. Ives, 144 U. S. 408; Texas & Pacific v. Gentry, 163 U. S. 353, 369; Cowen v. Merriam, 17 App. D. C. 186.
Defendants charge that this contributory negligence which they impute to deceased consisted of two distinct acts on his part: (1) going under the closed gates; (2) failing to look and listen.
Appellants cite many authorities and quote in extenso from the opinions of the courts in support of the general proposition that to go under closed gates and on a railroad track constitutes negligence per se.
The principle as stated, and when applied to the ordinary case, where the gates are used as signals of danger or safety danger when closed, and safety when opened—is obviously wholesome and sound.
Argument for Defendant in Error. 191 U. S.
The gates were kept down all night except when vehicles passed; this was a custom and plaintiff knew of the custom and was entitled to rely upon it as he did. This took plaintiff out of the general rule of what would otherwise have been negligence per se ; no testimony was offered by defendants below on this point.
Their failure to do so, where the witnesses who operated the gates, and who knew and could have testified better than any one else as to the exact facts, were their own employés, whom they could readily have produced if those facts would have been to their advantage, of itself creates a case for the deduction of inferences that the facts were adverse to them, upon which the plaintiff was entitled to have the jury pass. Am. Bell Tel. Co. v. Nat. Tel. Mfg. Co., 109 Fed. Rep. 976,1018 ; In re Kellogg, 7 Am. Bank. Reg. 635; Graves v. United States, 150 U. S. 118, 120, 121; Runkle v. Burnham, 153 IT. S. 216, 225.
As to the alleged negligence of passing under the gates, when a danger signal thus becomes no real signal of danger, no negligence is to be imputed to the traveler who knows the fact and acts upon it. Cessante ratione legis cessât et ipsa lex. A fortiori, when a signal ceases to be used for the object for which it was intended, it ceases to indicate that object. Dashiell v. Market Company, 10 App. D. C. 81, 89; Douglass v. R. R. Co., 100 Wisconsin, 405, and Sheehan v. R. R. Co., 166 Pa. St. 354, distinguished.
While it is the duty of one before attempting to cross a railroad track to look and listen for the approach of trains, it is equally well settled that in the absence of any evidence to the contrary, it is to be presumed in favor of the deceased that he did so look and listen. Continental Improvement Co. v. Stead, 95 IT. S. 161, 194; Texas & Pacific v. Gentry, 163 IT- S. 353, 366.
It was not error for the court to refuse to charge in the exact language selected by counsel for defendants. Continental Imp. Co. v. Stead, 95 IT. S. 161, 194.
191 IT. S. Opinion of the Court.
Mr . Just ice Mc Kenna , after stating the case, delivered the opinion of the court.
The correctness of the ruling in denying the motion to instruct the jury to find a verdict for the plaintiffs in error depends upon the correctness of the ruling in granting or refusing the special instructions prayed. The principles embraced in them are but specifications of the legal propositions contained in the motion and upon which its soundness or unsoundness depended. If the ruling of the court was right on those instructions it was right on denying the motion. We proceed, therefore, to the consideration of the propositions embraced in the instructions.
The charge of the defendant in error is that the railroad companies were guilty of negligence. The railroads deny this, and claim besides that the deceased came to his death by his own negligence, or by negligence which contributed to that result. As an element in the question of the entire innocence of the railroad companies there is involved the construction and effect of the evidence in regard to the coupling of the cars and the sufficiency of the light upon the Pullman car to give notice and warning of its approach. In regard, however, to that evidence the instructions of the court are not questioned in this court. No error is assigned on them here, and whatever of argument is addressed to them or to the evidence is intended to show that those acts, even if they were acts of negligence, were not effective causes of the injury of the deceased, but that his own negligence was such cause. The determination of the contentions of plaintiffs in error, therefore, depends upon the question of the negligence of the deceased, and the instructions given in relation thereto. At the request of the plaintiff in the action, defendant in error here, the court instructed the jury as follows:
1. In the absence of all evidence tending to show whether the plaintiff’s intestate stopped, looked and listened before attempting to cross the south track, the presumption would p. 472be that he did. But that presumption may be rebutted by circumstantial evidence, and it is a question for the jury whether the facts and circumstances proved in this case rebut that presumption, and if they find that they do, they should find that he did not stop and look and listen, but if the facts and circumstances fail to rebut such presumption then the jury should find that he did so stop and look and listen. In order to justify them in finding that he did not, all the evidence tending to show that should be weightier in the minds of the jury than that tending to show the contrary.
“2. The jury are instructed that if they believe from the evidence that the gates at the crossing where the deceased received his injury were generally kept down at night from 10:30 or 11 o’clock until the early morning, without regard to the approach or presence of a car, a train, or trains or locomotives, and shall further conclude from all the facts and circumstances of the case that the deceased had knowledge of that fact, then the circumstance that the gates at the intersection of South Capitol street were down at the time of the accident was not of itself a warning to him of the presence of danger, and contributory negligence cannot be imputed to him from that fact alone.
“3. While knowledge by the deceased of the presence of the Fenton engine on the north track or partly upon the South Capitol street crossing and the approach of No. 78 upon one of the central tracks at or near the time of the accident might or would indicate the presence of danger on or near those tracks, it is for the jury to determine upon all the facts of this case whether it was a want of ordinary or reasonable care and prudence upon his part to be upon the south track, at the point upon said last-named track at which they shall find from the evidence the accident occurred.”
The defendants, plaintiffs in error here, submitted instructions to the court which were emphatic contraries of the instructions given at the request of the plaintiff, and expressed the law to be-that the fact of the gates being down was of itself p. 473a warning to the deceased; and further, if he disregarded the warning, he was guilty of contributory negligence; and that the gates being down, they were “closed or lowered for all trains, cars or engines which were moving or passing or which might move or pass upon all or any of said tracks at said crossing and were a warning of danger which the plaintiff’s intestate was bound to heed, and if the jury shall find that the plaintiff’s intestate met his death by going under said gates and upon or so near to one of said tracks as to be struck by a car moving on said track, he was guilty of negligence contributing to the accident, and the plaintiff cannot recover in this action.”
The following instruction was also prayed:
“It appearing from the uncontradicted evidence in the case that the defendants maintained at all hours of the night a gateman in charge of the gates at the crossing in question, who raised and lowered said gates as occasion might require, and it. further appearing from such evidence that such gateman was accustomed to open or raise said gates for the passage of pedestrians or vehicles when it was safe to do so, and it further appearing that the crossing in question being adjacent to the shifting, storage and engine yards of said defendants and between such yards and their passenger and freight stations in the city of Washington, and that the main tracks leading to and from said station also passed over the same, said crossing was an especially dangerous place, the jury are instructed that in the absence of any evidence tending to show that the plaintiff’s intestate, upon approaching said crossing and finding the gates between him and the tracks lowered or closed, made any request of the gateman to raise or open the same or submitted any inquiry as to whether any engines, cars or trains were approaching said crossing before he went under said gates and entered upon the crossing within the same and thereby received the injuries which resulted in his death, said intestate was guilty of negligence directly contributing to his own misfortune and the plaintiff cannot recover.”
(1.) There was no error in instructing the jury that in the p. 474absence of evidence to the contrary, there was a presumption that the deceased stopped, looked and listened. The law was so declared in Texas & Pacific Railway Co. v. Gentry, 163 U. S. 353, 366. The case was a natural extension of prior cases. The presumption is founded on a law of nature. We know of no more universal instinct than that of self preservation—none that so insistently urges to care against injury. It has its motives to exercise in the fear of pain, maiming and death. There are few presumptions, based on human feelings or experience, that have surer foundation than that expressed in the instruction objected to. But notwithstanding the incentives to the contrary, men are sometimes inattentive, careless or reckless of danger. These the law does not excuse nor does it distinguish between the degrees of negligence.
This was the ruling in Northern Pacific Railroad Co. v. Freeman, 174 U. S. 379, the case which plaintiffs in error oppose to Railway Co. v. Gentry. In the Freeman case a man thirty-five years old, with no defect of eyesight or hearing, familiar with a railroad crossing and driving gentle horses which were accustomed to the cars, approached the crossing at a trot not faster than a brisk walk, with his head down looking at his horses and drove upon the track, looking “straight before him without turning his head either way.” This was testified to by witnesses. There was direct evidence, therefore, of inattention. There is no such evidence in this case, and the instructions given must be judged accordingly. The court did not tell the jury that all those who cross railroad tracks, stop, look and listen, or that the deceased did so, but that, in the absence of evidence to the contrary, he was presumed to have done so, and it was left to the jury to say if there was such evidence. The instruction was a recognition of “the common experience of men, from which it was judged in the Freeman case that the deceased in that case had not looked or listened, and submitted to the jury that which it was their constitutional duty to decide. And there was enough evidence to justify dispute and from which different conclusions could be drawn.
(2.) We think there was no error in the instruction as to the effect of the gates as a notice of danger under the practice of the companies. Indeed, the instruction is so obviously right that argument advanced to support it drops into truisms. One thing or condition cannot be any certain evidence of another thing or condition unless they invariably co-exist. Of course, two things may occasionally co-exist, but this furnishes no argument for plaintiffs in error. It only raises the query, when do the things co-exist, and, making an application to the pending case, when did the closed gates and passing trains co-exist? When were the former a witness of the latter? Always? The testimony answers, no. Between 10:30 and 11 o’clock at night, until morning, the gates were generally kept down without regard to passing trains. During that time, therefore, they had no more relation to passing trains than the signal tower or any other inanimate object at or near the crossing. Gates at a railroad crossing have a useful purpose. Open, they proclaim safety to the passing public; closed, they proclaim danger; but, it is manifest, if they be open or closed, regardless of safety or danger, they cannot be notice of either. Counsel perceive this and extend their contention to urging that it is the duty of those who want to cross, be they pedestrians or those driving teams, to seek the gateman and not to attempt to cross until he raise the gates.
Those driving teams must do so if they pass at all, and a controversy such as this record presents could not occur as to them. But there are more who walk than ride, and every time their way is stopped by gates at a railroad crossing must they awake a sleeping gateman, or seek an absent one, or be charged with negligence, and that despite the fact that the practice of the railroad company has made closed gates not necessarily an indication of danger? The contention makes the neglect of duty by the railroad as efficacious as the performance of duty. At times a railroad must have exclusive use of a crossing, but at such times it is its duty to close the gates. The use over it is its duty to open them, and it cannot
Opinion of the Court. 191 u. g.
neglect that duty and claim the same consequence as if it had been performed. The instructions of the court were very guarded. It told the jury if the gates where the injury occurred were generally kept down at night from 10:30 or 11 o’clock, without regard to the presence or absence of trains, and that deceased had knowledge of that fact, then “the circumstance that the gates at the intersection of South Capitol street were down at the time of the accident was not of itself a warning to him of the presence of danger, and contributory negligence cannot be imputed to him from that fact alone.”
The italics are ours, and the words italicized put a careful limitation upon the instruction, and, so limited, it was not erroneous.
(3.) It was an issue in the case whether the deceased was struck and run over by the Pullman car or by the passenger express No. 78, and on that issue the court instructed the jury that if the deceased was struck and run over by the passenger express, their verdict should be for the plaintiffs in error. This instruction is complained of. Plaintiffs in error contend that there was no evidence from which it could be determined that it was the Pullman car and not the passenger express train which injured the deceased, and it was error, therefore, to submit.the issue to the jury. The action of the court was right. There was certainly evidence on the issue from which reasonable men might draw different conclusions.
As we have already seen, the most direct evidence of the passing of the north bound express was to the effect that “the runaway car passed the southwest crossing before 78 (the passenger express) reached there; it struck just the middle part of No. 78 as the train came by there; the runaway car had just about gotten across the crossing when the engine of 78 began to cross the crossing; it was almost about the same time.
If it be admitted that this leaves the issue in doubt, and justifies no inference, there are circumstances to be considered. If the deceased was struck by No. 78, it is difficult to understand how he got to the place and in the condition he was found. p. 477191U. S. Syllabus.
Was he hurled there by the impact of the train? If that were possible, how came his legs to be crushed? Not by the runaway car, because that had passed j not by train 78, for he had been cast aside and away from that. The circumstances, therefore, seem to indicate that he was not struck by train 78, but was run over by the rimaway car, and, we think, there is nothing inconsistent with that conclusion in his statement. His situation was horrible. If in our different situation we may venture to judge of it at all, we may wonder that he had or could retain any preception of what had occurred. Certainly’ exact accuracy of statement could not have been expected of him, and to his shocked and almost overwhelmed senses it might well have seemed that not one car only, but a train of cars had run over him. Finding no error in the record, the judgment is
Affirmed.