Tomlinson v. Chicago, M. & St. P. Ry. Co.
Court of Appeals for the Eighth Circuit
In Error to the Circuit Court of the United States for the' District of South Dakota. About six o’clock in the evening of the 26th of November, 1901, Edwin K. Tomlinson, a traveler upon a country highway in South Dakota, was killed at a railroad crossing by a passenger train of the Chicago, Milwaukee & St. Paul Railway Company.
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In Error to the Circuit Court of the United States for the' District of South Dakota. About six o’clock in the evening of the 26th of November, 1901, Edwin K. Tomlinson, a traveler upon a country highway in South Dakota, was killed at a railroad crossing by a passenger train of the Chicago, Milwaukee & St. Paul Railway Company. An action was brought under a statute of that state by Hattie Tomlinson, his widow, to recover damages upon the ground that the accident was caused by the negligence of the railway company. The evidence at the trial developed no negligent act or omission, excepting the…
1Opinion of the CourtHook, Circuit Judge
The plaintiff relies upon the presumption that, in the absence of ■evidence upon the subject, the deceased exercised due care to preserve his safety. Texas, etc., Railway v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186; Northern Pacific Railway v. Spike, 121 Fed. 44, 57 C. C. A. 384. But this presumption cannot stand against positive and uncontradicted proof, such as was presented in this case; that, had he taken those precautions which the law required of him, he could plainly have seen the approach of the train in time to avoid the danger. Northern Pacific Railroad v. Freeman, 174…
2Cases cited9 opinions
- Texas & Pacific Railway Co. v. GentrySupreme Court of the United States · 1896
- Baltimore & Potomac R. Co. v. LandriganSupreme Court of the United States · 1903
- Northern Pacific Railroad v. FreemanSupreme Court of the United States · 1899
- Chicago & N. W. Ry. Co. v. AndrewsCourt of Appeals for the Eighth Circuit · 1904
- Pyle v. ClarkCourt of Appeals for the Eighth Circuit · 1897
4 more not listed; retrieve them via the Exa API.
3Cited by15 opinions
- St. Louis & S. F. R. v. CundieffCourt of Appeals for the Eighth Circuit · 1909
- Wabash R. Co. v. De TarCourt of Appeals for the Eighth Circuit · 1905
- Rich v. Chicago, M. & St. P. Ry. Co.Court of Appeals for the Eighth Circuit · 1906
- Erie R. v. WeinsteinCourt of Appeals for the Sixth Circuit · 1909
- Union Pac. R. Co. v. RosewaterCourt of Appeals for the Eighth Circuit · 1907
10 more not listed; retrieve them via the Exa API.