Baltimore & O. R. v. Anderson, 85 F. 413

Baltimore & O. R. v. Anderson

85 F. 413 | 6th Cir. | 1898

TAFT, Circuit Judge,

after stating the facts as above, delivered the opinion of the court.

The main street of North Baltimore did not cease to be a public highway because the railroad company had laid its tracks across it at that point. The public are entitled to use a highway and cross from one, side to the other as they are entitled to use it for longitudinal passage. If the platform constructed by the railway company at the intersection of its tracks with the street was a convenient mode of crossing from one side of the street to the other, we do not see that the railway company has any right to object to such a use. Its only right is to have the travelers upon the public highway observe due caution not to be in the way of its trains when the trains are crossing the highway. We think, therefore, that, if the plaintiff was otherwise exercising due care, his use of the railroad track to cross the street from one side to the other could not make his conduct negligent. A different rule might prevail where the railroad track is constructed along the highway longitudinally, and lies parallel to the course of travel in the street. In such a case, it might very well be held that it was negligeuce for the traveler along the highway to use the bed of the railroad track, when he might as well and as conveniently use the traveled part of the highway. But we apprehend that no such rule applies where the crossing is at right angles, and the traveler is merely attempting to cross over from one sidewalk to the other. The evidence shows that the street was frequently muddy, and, as the track made a dry crossing, the public used it. We cannot see that this was trespassing on the rights of the company in any way, or that the danger to the public in using such crossing was appreciably increased over what it would be in crossing the track at right angies. We do not think, therefore, *416that the introduction of evidence as to the custom of the public was prejudicial to the defendant. Our conclusion upon this point disposes of the exception based on the refusal of the court to give the first and second requests, in which it was assumed, as the law, that the public had no right to use the railway crossing as a means of crossing the street from one sidewalk to the other.

The passage of the charge first excepted to states the law correctly. In that charge the court assumed that the plaintiff was guilty of negligence in crossing the railway track as he did, and then stated to the jury that his negligence would not relieve the defendant from liability if they found that, by due care, the engineer and fireman might have stopped the train after they had seen, or ought to have seen, the position of danger in which the plaintiff, by reason of his negligence, was placed, and could thus have avoided injuring him. The objection on behalf of the defendant to this statement of the law is that there was no obligation on the part of the agents of the railway company to look out for the plaintiff, or to assume that he would put himself in the dangerous place. The plaintiff was one of the public. The obligations upon the public and the railroad company at an intersection of the track with a highway are correlative. Improvement Co. v. Stead, 95 U. S. 161. Neither is relieved from the duty of carefully watching the crossing to avoid accidents by the assumption that the other is doing his or its whole duty at such a place. Blount v. Railroad Co., 22 U. S. App. 129, 9 C. C. A. 526, and 61 Fed. 375; Railroad Co. v. Houston, 95 U. S. 697; Schofield v. Railway Co., U. S. 615, 5 Sup. Ct. 1125. The same obligation on the part of the company does not arise to keep a lookout in cases where the person injured is a trespasser or is not using the highway as a highway. Railroad Co. v. Cook, 31 U. S. App. 277, 13 C. C. A. 364, and 66 Fed. 115; Railroad Co. v. Howe, 6 U. S. App. 172, 3 C. C. A. 121, and 52 Fed. 362. But the broad distinction between the case at bar and such cases is that the plaintiff here was on the highway, where he had the right to be unless there was danger of his being run over by a train of the defendant, and where the defendant was bound to anticipate the possibility of his being when it was using the crossing. This distinction is clearly brought out by Judge Burton in delivering the opinion of this court in Railroad Co. v. Cook, 31 U. S. App. 288, 13 C, C. A. 367, and 66 Fed. 119. Our conclusion that the first passage of the charge excepted to was correct disposes also of the exception based on the refusal of the court to give the fourth of defendant’s requests to charge, which embodies the theory that, if the plaintiff was negligently on the crossing, the railway company was under no obligation to keep a lookout for him.

We come now to the second passage of the charge, which was excepted to. By this passage the court left to the jury the questions —First, whether the defendant was negligent in allowing such a defect in the platform; and, second, whether the proximate cause of the accident was the negligence of the plaintiff in crossing in front of the approaching train or his being caught in the dangerous hole, of the existence of which he was ignorant, and directed a verdict for plaintiff only in case defendant’s negligence was the cause of the *417defect in the platform, and the defect was the proximate canse of the accident. The action of the trial court was in accord with the decision of this court in Railway Co. v. Craig, 37 U. S. App. 654, 19 C. C. A. 631, and 73 Fed. 642. In that case the plaintiff was a switch-man, who had been injured while attempting to uncouple two cars by having his foot caught: in an unblocked frog, and the liability sought to be imposed on the company was based on its failure to comply with the statute requiring it to Mode all frogs. _ The proper construction of the statute made contributory negligence of the injured person a defense to his recovery for its violation. The trial court charged the jury that, if he did not know that the frog was unblocked, his negligence in going between the cars when moving at a too rapid rate of speed could not contribute to the accident, because it could not be the proximate cause thereof, but the defective frog must be such proximate cause, and that alone. Tin' case was reversed on the ground that under such circumstances the question of proximate cause should have been left to the jury. This is the course which the judge at the circuit took in the case at bar. He left to the jury to decide'whether it was the negligence on the part of the plaintiff in crossing before the engine which proximalelv caused the accident. or in the fact that his foot was caught in the hole.

No other errors appear in the record, and the judgment of the coxirt below is affirmed.