274 F. 784 | 6th Cir. | 1921
The automobile, in which plaintiff in 'error (hereinafter called plaintiff) was riding on the Lincoln Highway, through the village of East Union, Ohio, was struck at a crossing by a passenger train of the Pennsylvania Railroad; plaintiff receiving serious personal injuries. The two other occupants of the automobile were killed. The highway at the point in question runs east and west; the railroad, substantially north and south. The automobile was traveling east; the colliding train came from the north. The automobile (left-hand drive) was being driven by one Kraus, plaintiff’s employer, who alone occupied the front seat. The right-hand side of the back seat was occupied by plaintiff; the left-hand side by the driver’s mother, who was thus on the same side of the approaching train as was the driver. All three were bound for Orrville; the driver and plaintiff each on a separate and personal errand. The side curtains were on, but plaintiff testified that the “view to look out through the curtains (apparently through a ‘sort of isinglass’) was not interrupted.”
At the point of collision the highway was about 55 feet wide, having in its center a brick pavement 11% feet wide. There were two tracks, the westerly being a side track, extending both north and south of the highway; the easterly being the main track. The automobile thus had to cross the side track before reaching the main track, on which the collision occurred. A few feet west of the side track, and a short distance north of the highway, was an elevator. At the time of the collision there was oh the side track a string of freight cars extending north from a point within the 55-foot roadway and only a few feet north from its paved portion. There was testimony that these cars filled practically the entire length of the side track to the north, estimated by some of the witnesses as from 300 to 50Ó feet. There were also freight cars on the side track south of the highway, as well as a warehouse and coal bin. A little west of the elevator (and thus on the north side of the highway) was a dwelling house, and farther west (about 15 rods from the crossing) was a store. Beyond the freight cars ro the north, and several hundred feet from the crossing, was a piece of woods. The track ran practically straight for about a quarter of a mile north of the crossing, and could be seen at intervals during a distance of a quarter of a mile by one approaching on the highway from
At the southeast intersection of the highway and the railroad, and opposite the box cars on the south part of the side track, was a passenger station, with a platform extending to the south line of the highway. There was testimony that had there been no cars on the side track, one driving east on the highway, when on a line even with the side of the elevator, could see 50 to 100 feet to the north on the main track, and beyond the point where the elevator would obstruct the view could see north on the maiti track to the woods, but that with the box cars upon the side track the nearest point at which a view of the main track to the north for a considerable distance could be had would be perhaps a quarter of a mile from the crossing, and that one could not see around the end of the nearest box car until the front wheels of the automobile were 5 to 10 feet from the main track.
The grounds of negligence relied upon were: (a) That the train was operated without sounding the whistle or ringing the bell, or giving any warning of the train’s approach to the crossing; (b) negligently placing the box cars upon the side track and in the highway, thereby blocking the view of the approaching train from the automobile; (c) that the engine crew approached the highway crossing without having the train under proper control, when it knew that the view of the train was blocked by buildings and box cars standing upon the side track; (d) running over the crossing without signal or warning of approach.
At the close of the testimony the trial’ judge directed verdict for defendant, upon the ground that no question of fact for the jury was presented respecting defendant’s alleged negligence; the court stating that in his opinion there was no substantial conflict in the evidence over the proposition that both the whistle and bell were sounded, and, in effect, that if the presence of the box cars in the highway called for additional care in operating the train, the evidence showed the exercise of additional care in the sounding of whistle shortly before the crossing was reached. The court laid stress upon the testimony that a volunteer, who apparently saw the train coming, tried to give warning of its approach. The court further said that according to the “almost undisputed testimony” the automobile approached the crossing at a higher rate of speed than that of the train.
We think plaintiff presented substantial testimony at least to the effect: that the bell was not ringing when the crossing was approached. Her testimony to this effect cannot, in our opinion, be said as matter of law, to be contrary to reason or to physical and natural laws. It was open to the jury to find that she was in a position where she could have heard the hell if it were ringing. The credibility of her testimony was thus for the jury; and this is so, even if the jury might think that she was mistaken about the whistle. As already said, her testimony as to nonringing of the bell was corroborated by other testimony.
For the error in directing verdict for defendant, the judgment of the District Court is reversed, with instructions to award a new trial.
She testified: “As I passed the grocery store I did look between the grocery store and elevator, between the houses. I did not see any train coming. The last time I looked north was as we were approaching the elevator, ■on the west side and to the north of the elevator. I did not see any train at that time. As we passed the elevator, and before we came to the box ear, X looked up to the north, but you can’t see. I know where that driveway is between the elevator and the cars that were on the side track. I don’t know as I looked through the driveway to the north. That would be the last opportunity to look until we got almost onto the track. I don’t remember if I looked at that point or not. Naturally I would be listening at all times. I was looking, and X will say positively I was listening as I approached the •crossing from the time I passed the grocery store until I was struck.”
Hales v. Mich. Central R. R. Co., supra, 200 Fed. at page 537, 118 C. C. A. 627.
That the rule of imputed negligence (in case of a passenger not strictly for hire) is not thoroughly settled in defendant’s favor is manifest. For example : In the pleasure riding eases in the Circuit Court of- Appeals for the Third Circuit (Brommer v. Penna R. R. Co., 179 Fed. 580, 103 C. C. A. 135, 29 L. R. A. [N. S.] 924, and Hall v. West Jersey, etc., Co., 244 Fed. 104, 156 C. C. A. 532), the respective plaintiffs, who were sitting on the front seat with the drivers, were declared guilty of personal negligence contributing to the accident, although not on the theory of imputed negligence, but on the ground that they had better opportunity than, and were under equal duty with, the driver to look out for the safety of the party. On the other hand, in Southern Ry. Co. v. Wright (C. C. A. 9) 248 Fed. 261, 160 C. C. A. 339, the deceased, who was riding on and paying for the use of a motor truck (for the purpose of trying it:!out with a view to its purchase), was by a divided court held a passenger (and so not chargeable with the driver’s negligence), although he directed the general route of the truck. In Bramley v. Dilworth, 274 Fed. 267, decided by this court June 7, 1921, it was held, confirming in this respect the holding of the District Court, that the driver’s negligence was not imputable to the injured plaintiff, who was riding on the back seat of the automobile and took no part in operating the car in which he was being carried as one of a party of friends, another of whom had possession and charge of and was driving the car. See, also, Toledo, etc., Co. v. Mayers, 93 Ohio St. 304, 112 N. E. 1014; Commissioners v. Bicher, 98 Ohio St. 432, 121 N. E. 535.
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