86 Opinion of the Court. 4. The revocation of the appellant's license by the state treasurer without notice and hearing did not deprive it of property without due process in violation of the XIV Amendment. Whether in other circumstances the license contemplated by the statutes under consideration might be considered property within the protection of the due process clause we need not determine. It is sufficient in this case to advert to the undisputed facts disclosed by the record. The law imposes no penalty for conducting the business of a distributor without a license; the only penalties mentioned are for failure to report gasoline intended for use in the state, and to pay the tax. The state officers have not sought to prevent the appellant from continuing its business as a distributor, and have in this proceeding, both by answer and by evidence, avowed their purpose to take no further action against the appellant, either criminal or civil, until the conclusion of the civil suit now pending in a state court to recover the tax, the failure to pay which was the ground of revocation of the appellant's license. The State's officials are prosecuting the action as a test suit. There is therefore no threat of immediate harm as a result of the revocation of the license, and the action of the state treasurer in revoking it cannot affect the pending civil suit or any other action civil or criminal which may hereafter be brought. 5. By its bill the appellant asked an injunction against the further prosecution of the action at law in the state court for the failure to report and to pay tax on certain gasoline. The court below pointed out that § 265 of the Judicial Code (U.S.C. Tit. 28, § 379) forbids the granting of this prayer, and the appellant admitted at the bar that it could not have such relief and did not insist upon it. We find no error in the decision of the district court, and its judgment must be Affirmed. Syllabus. 292 U.S. POKORA v. WABASH RAILWAY CO. CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SEVENTH CIRCUIT. No. 585. Argued March 8, 9, 1934.-Decided April 2, 1934. 1. The burden of establishing the defense of contributory negligence in a personal injuries case is on the defendant. P. 100. 2. Upon a mction by the defendant for a directed verdict, made at the close of the plaintiff's case in chief, and based upon the ground of contributory negligence, the evidence must be viewed in the light most favorable to the plaintiff and all inferences from it which the jury might reasonably draw in his favor are to be assumed. P. 100. 3. The proposition that a driver of an automobile, before crossing a railroad of which his view is obstructed, must get out of his vehicle and inspect the track if he can not otherwise be sure that a train is not dangerously near, can not be accepted as a general rule of law. Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66, limited. Pp. 102, 106. 4. The driver of an automobile truck, pursuing his way in a line of auto traffic along a busy city thoroughfare in the day time, attempted to cross another street traversed by a railroad switch track and, beyond that and close to it, by a main line for passenger trains. Before entering the street intersection, he had stopped his vehicle, and, before proceeding, he looked for trains, but a string of box cars on the switch cut off his view. He listened, but heard neither bell nor whistle. Still listening, he drove across the switch and, reaching the main line, was struck by a train coming at the unlawful speed of 25 or 30 miles per hour. The evidence would support a finding that, owing to the presence of the box cars and the proximity of the two tracks, the train was not visible from his seat while there was still time to stop. In an action for resulting injuries, held: (1) That the question whether, in the circumstances, it was negligence to go forward in reliance on the sense of hearing unaided by sight, was a question for the jury. P. 101. (2) The driver was not bound as a matter of law to leave his truck either on the switch track or at the curb, in order to make visual observations which might turn out worthless by the time he had returned to the vehicle and driven it forward. Pp. 104 et seq. 98 Opinion of the Court. 5. A standard of prudent conduct declared by courts as a rule of law must be taken over from the facts of life and must be such that a failure to conform to it is negligence so obvious and certain that rational and candid minds could not deem it otherwise. P. 104. 66 F. (2d) 166, reversed. CERTIORARI, 290 U.S. 624, to review the affirmance of a judgment for the Railway Company, entered on a directed verdict in Pokora's action for personal injuries. Mr. W. St. John Wines for petitioner. Mr. Homer Hall, with whom Mr. Walter M. Allen was on the brief, for respondent. MR. JUSTICE CARDOZO delivered the opinion of the Court. John Pokora, driving his truck across a railway grade crossing in the city of Springfield, Illinois, was struck by a train and injured. Upon the trial of his suit for damages, the District Court held that he had been guilty of contributory negligence, and directed a verdict for the defendant. The Circuit Court of Appeals (one judge dissenting) affirmed, 66 F. (2d) 166, resting its judgment on the opinion of this court in B. & O. R. Co. v. Goodman, 275 U.S. 66. A writ of certiorari brings the case here. Pokora was an ice dealer, and had come to the crossing to load his truck with ice. The tracks of the Wabash Railway are laid along Tenth Street, which runs north and south. There is a crossing at Edwards Street running east and west. Two ice depots are on opposite corners of Tenth and Edward Streets, one at the northeast corner, the other at the southwest. Pokora, driving west along Edwards Street, stopped at the first of these corners to get his load of ice, but found so many trucks ahead of him that he decided to try the depot on the other side of the way. In this crossing of the railway, the accident occurred. Opinion of the Court. 292 U.S. The defendant has four tracks on Tenth Street, a switch track on the east, then the main track, and then two switches. Pokora, as he left the northeast corner where his truck had been stopped, looked to the north for approaching trains. He did this at a point about ten or fifteen feet east of the switch ahead of him. A string of box cars standing on the switch, about five to ten feet from the north line of Edwards Street, cut off his view of the tracks beyond him to the north. At the same time he listened. There was neither bell nor whistle. Still listening, he crossed the switch, and reaching the main track was struck by a passenger train coming from the north at a speed of twenty-five to thirty miles an hour. The burden of proof was on the defendant to make out the defense of contributory negligence. Miller v. Union Pacific R. Co., 290 U.S. 227, 232. The record does not show in any conclusive way that the train was visible to Pokora while there was still time to stop. A space of eight feet lay between the west rail of the switch and the east rail of the main track, but there was an overhang of the locomotive (perhaps two and a half or three feet), as well as an overhang of the box cars, which brought the zone of danger even nearer. When the front of the truck had come within this zone, Pokora was on his seat, and so was farther back (perhaps five feet or even more), just how far we do not know, for the defendant has omitted to make proof of the dimensions. Nice calculations are submitted in an effort to make out that there was a glimpse of the main track before the switch was fully cleared. Two feet farther back the track was visible, it is said, for about 130 or 140 feet. But the view from that position does not tell us anything of significance unless we know also the position of the train. Pokora was not protected by his glimpse of 130 feet if the train at the same moment was 150 feet away or farther. For all that appears he had no view of the main track northward, or none for 88 98 Opinion of the Court. a substantial distance, till the train was so near that escape had been cut off. Cf. Dobson v. St. Louis S. F. Ry. Co., 223 Mo. App. 812, 822; 10 S.W. (2d) 528; Turner v. Minneapolis, St. P. & S. S. M. R. Co., 164 Minn. 335, 341; 205 N.W. 213. In such circumstances the question, we think, was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt it was his duty to look along the track from his seat, if looking would avail to warn him of the danger. This does not mean, however, that if vision was cut off by obstacles, there was negligence in going on, any more than there would have been in trusting to his ears if vision had been cut off by the darkness of the night. Cf. Norfolk & W. Ry. v. Holbrook, 27 F. (2d) 326. Pokora made his crossing in the day time, but like the traveler by night he used the faculties available to one in his position. Johnson v. Seaboard Air Line R. Co., 163 N.C. 431; 79 S.E. 690; Parsons v. Syracuse, B. & N. Y. R. Co., 205 N.Y. 226, 228; 98 N.E. 331. A jury, but not the court, might say that with faculties thus limited, he should have found some other means of assuring himself of safety before venturing to cross The crossing was a frequented highway in a populous city. Behind him was a line of other cars, making ready to follow him. To some extent, at least, there was assurance in the thought that the defendant would not run its train at such a time and place without sounding bell or whistle. L. & N. R. Co. v. Summers, 125 Fed. 719, 721; Illinois Revised Statutes, (1933 ed.), c. 114, 84. Indeed, the ¶ 'The Illinois Act provides: "Every railroad corporation shall cause a bell of at least thirty pounds weight, and a steam whistle placed and kept on each locomotive engine, and shall cause the same to be rung or whistled by the engineer or fireman, at the distance of at least eighty rods from the place where the railroad crosses or intersects any public highway, and shall be kept ringing or whistling until such highway is reached." |