186 F. 13 | 6th Cir. | 1911
The defendant in error (hereinafter called the “plaintiff”) was struck-and injured by a freight engine while walking across defendant’s railroad track at the Cla}' street crossing in Niles, Ohio. Several grounds of negligence were charged, the most prominent being .the alleged lack of headlight upon the engine, the failure to give warning of the train’s approach by bell or whistle, and the fact that the electric gong at the Clay street crossing was out of commission. The accident happened at about 9:30 o’clock in the evening. There was evidence that the night was dark and cloudy, the electric lamp at the Clay street crossing was not burning, and the electric gong at that crossing was out of commission. The engine in question was the foremost of two engines hauling a long freight train.
The plaintiff testified that about six feet before reaching the crossing he stopped, looked and listened, saw and heard no train, passed on, and just as he was stepping over the further rail was struck by the engine. There was testimony that the engines were “drifting” (the steam being shut off), and were moving at a rate variously estimated at from 5 to 15 or 20 miles an hour; the evidence preponderating in favor of the lower speed. There was also direct testimony that there was no headlight on the engine, and that no whistle or bell was sounded as the crossing was approached. There was a straight, clear track for about 1,300- feet east of Clay street. .
At the close of the testimony the defendant moved for direction of verdict in its favor, on the ground that the evidence showed conclusively, as a matter of law, that the plaintiff was cofitributorily negligent. The court, in an unexceptionable charge, submitted the case to the jury, and instructed them that if the headlight was burning on the engine plaintiff was negligent, and could not recover. The denial of the motion for directed verdict is the only ground urged for reversal.
It is contended: First, that there was not sufficient evidence to create a conflict upon the issue that the headlight was not burning; and, second, that even if the headlight were not burning, the physical and conceded facts conclusively show that the plaintiff was contribu-torily negligent. We will consider these two propositions in the order stated.
“I most certainly can state there was no headlight burning. I could not have failed to see the headlight if it had been lighted.”
These witnesses, who were walking toward Clay street, were overtaken by the train soon after leaving Olive street. Another witness upon the track between Clay and Olive streets, and walking toward the latter street, met the train on the way, not seeing the train (as we understand the record) until within 15 or 20 feet of it, at or near which point this witness met the two witnesses who were walking from Olive street toward Clay street. Notwithstanding the positive testimony of the railroad employés that the headlight on the engine was burning, and the alleged improbability that a train such as this would have been run at that time of night without a headlight, we think that, in view of the testimony of other witnesses, who should have seen the light if burning, to the effect that they did not see it, the question was one for the jury. Detroit Southern Ry. Co. v. Lambert (Sixth Circuit) 150 Fed. 555, 80 C. C. A. 357; Lonis v. Railway Co., 111 Mich. 458, 69 N. W. 642; Crane v. Railroad Co., 107 Mich. 511, 65 N. W. 527. It happens that in the three cases we have cited the alleged negligence related to failure to give warning by bell or whistle; but there is no difference in the principle as applied to a headlight.
Coming to the proposition that the physical and conceded facts conclusively show that the plaintiff was negligent, even if the headlight was not burning:
The proposition that the plaintiff, although looking for the train, did not see it, is supported by the testimony of the witnesses we have referred to. There was testimony that the lamp was burning at the Olive street crossing, 250 feet east of the Clay street crossing, yet the three witnesses, two of whom were overtaken by the train, the other of whom met it, near the Olive street crossing, notwithstanding the greater light at that place, were unable, according to their testimony,
The judgment of the-Circuit Court is affirmed.