DETROIT, T. & IR CO. v. Yeley

MIL- HICKS, Before MARTIN LER, Judges. Circuit MILLER, Judge. Circuit Detroit, Iron- appellant, Toledo The Company, appeals from ton Railroad $3,500 rendered judgment in sum by appellee, filed against in an action datftages result- Yeley, George seeking D. crossing. at a accident from an complains Appellant of the refusal of favor, in its direct a verdict appellee’s evidence both at close of close of all and at the case. petition, filed in the Com- Ohio, County, states

mon Pleas of Clark July that the accident occurred p. m. at intersection of 4:40 appellant’s railroad tracks and Ave- Park Ohio, Springfield, appellee’s nue in and that automobile, driving Avenue, southwardly in a direction on Park operated freight was hit proceeding eástwardly. appellant and into city. destroyed automobile appellee. suffered and severe petition appellant alleges negligent the train operating without regard rights persons due the, highway; operating the train use ringing without whistle' sounding ap- giving signal of bell to exercise care failing proach-; ordinary the automobile striking avoid 'MARTIN, Judge, dissenting. failing to have its train pellee; Circuit keep ap- also control to a the showed the and lookout for at the area northwest pellee; pile maintaining large of and in a corner the been of intersection used had along earth its and so right-of-way dump, as city resulting a in the accumula- to of Park Avenue the view large pile to obscure tion as a of of earth with accom- approach- using travelers panying Park Avenue and grass. weeds The con- and record negli- ing right-of-way; the railroad ap- tains much of the evidence on behalf gence earth, the pellee caused accident and pile the to effect that of this complained al- Appellant the denied arising height approximately of. to of 8 feet leged contributory negligence pleaded peak, at its obstructed between the view appellee. part The on of the the the railroad go- track an automobile questions presented was the evi- on (1) ap- south Park Avenue are — to dence sufficientto the case the pellant permitted take had obstruction with on appellant’s negligence, the issue of the uncut grass weeds and to encroach on ap- on (2) part did the the evidence behalf of of right-of-way its proximity in close pellee negligence on his contributory show to track in its addition to its existence on part law, require as a matter of to the as the city property the at corner. Whether judge ap- trial to direct the partly not this earth and debris pellant ? right-of-way appellant the of whether or not it constituted an obstruction to a difficulty with the We find little right-of-way traveler’s view of the were Although question. first evidence is the questions of fact on the bearing issue of respect operation contradictory to the appellant’s negligence for consideration accident, yet of the train at time of jury. properly in- contains evidence record substantial structed the that if it found that the appellee appellant on behalf dump, and the weeds and brush connected operating negligent the train in a therewith, right-of-way was not manner and that was the appellant then it no control over proximate ap cause of the accident. The employees it and required were tO' pellee traveling testified that the train was things take such into consideration when within limits at least 35 to miles city proaching crossing, but on the other hour, eye-witness an disinterested hand if it extended over appel- Dyer speed named estimated its around at right-of-way lant’s so as to form an ob- 30 miles an hour. The train continued on struction to the view along right-of-way stopping feet before about 500 after to the west of traveling a traveler south witnesses, appellee, accident. Three presence on Park Avenue then its Dyer and disinterested witness another taken been into consideration Walker, they named testified that did not employees of oper- the railroad company ringing hear train whistle or train, ating the as such circumstances bell, they although very close were company had control over it accident, position and in a scene and should have had the obstruction signals. such Section 8853 hear view highway traveler on the re- provides General that when Code Ohio moved. We justified believe evidence approaching highway an is submission issue crossing town where the view part appellant on the jury. to the is obstructed the whistle should crossing sounded distance not less than at On issue of neg and not farther than rods from ligence the evi rung bell shall be and the dence was as approx follows: There was engine passes continuously until the imately straight 287 feet of track to the crossing. nothing There record west Park Avenue from which direc rejection foregoing justify approached. tion the train ap There was evidence from witnesses. credible Contra proximately additional, track appellant’s dictory evidence from witnesses curving further west and south jury question. a clear raised slight bridge. up- overhead There was a listen, percent from and grade approximately one is that he must look well as appellee, bridge Park and that he must look Avenue. carpen- a time years age, that will working make the effective Foundry, apprise danger ter him whether near or Ohio Steel Rohrs, Detroit, not.” located north the intersec- T. of and to & I. R. Co. p. question. quit tion in He 4:30 114 Ohio work at 717. m., Appellant parking just upon support lot went to his car in relies a that case Avenue, pulled into a line off of out of its contention. The facts in Park that case very present and going are similar of cars south on Park Avenue to the facts in the proceeded testimony inter- case including a distance to the auto- short bright day dry. He approached section. It was and mobile he a driver that as Foundry crossing approach- had at the 'both an worked Ohio Steel he listened for accident, days gone ing kept about continuously before and looking day every train, over approaching back forth both crossing and an directions for worked, very he it. and was familiar with and that he did see the locomotive un- not appellee just crossed ready automobile ahead til it strike was to automo- Appellee when the track. testified that bile. The of Ohio said in stopped he reached the intersection he that case “It is that this evidence said tracks, go car 8 or about feet the case must from determine listened; ways car looked both Rohrs did look listen for the and whether and down, hearing approach south, windows were neither from and, and trains if seeing look, nor an train he approaching then, started find that he did even see, gear; though intersection in second across the he did not he re- might still * * * that Surely when he was the middle of the cover. it will not do for track train 3 right simply he discovered the feet one claim to recover be- west, see, him to the his car immedi- and cause he has looked and not did if the ately right that, looked, struck it are front door. conditions such had he he says look, witü in it must automobile have seen. When he he did caught on the front of the and car- and the conditions' establish the that fact position seen, then, ried in that any feet east- who looked would have one stopped. ward the train Appel- says where see, if he he not evidence did his own pile testified look, lee the establishes the that he did earth fact corner northwest shut his view though off to such think he did. To hold extent that had to simply be almost on the otherwise would be a ab- manifest track before he could see down surdity, the track doctrine the traveler right. to his Several upon witnesses tes- highway other when com- a vehicle tified that a car would have grade to come close ing to railroad must crossing a look track, it, some listen, feet from in might well if be abandoned n order to obtain a clear placed, view of track daylight, say in broad one so can witness, A to the west. Thornburg, testi- that he a given looked in direction where appellee, fied for the clear a view of there locomotive was a toward the moving the track west could be at obtained crossing, away, not farther than feet a 5 or * from it. * * and that he could not see it. In having undisputed

The case been removed view of the from the this case State court to the negligence, U. Rohrs’ S. District Court as to the trial account of diversity citizenship, granted is con- motion to direct trolled the Ohio law. The a verdict for the Ohio law defendant.” We believe places upon a a ruling controlling present traveler high- in the way approaching when steam both the In Rohrs case case. and present look and approach listen for the case there was an obstruction to crossing, place before trains at the railroad right-of- and in traveler’s view of manner will make the when the traveler was way a certain looking dis- listening definite, pointed duty is track. But as effective. “The tance from the out Lang, In Adm’x v. point closer to the rule in opinion, applying Pennsylvania App. 345, 18 view no R. track Co. the obstruction [59 supra, analyzed 274], Moss v. N.E.2d the Court

longer observed in existed. As Co., Cir., looking 146 F.2d rule that follows: “The spot listening is cer must be time at such there was such “That spot place be effec manner as will regardless just where that tain” accomplish designed there might present the evidence tive ends In be. by, comprehend a view spot necessarily where shows that there listening place- last time and train and approaching the track track, stop conveyance clearly A traveler picture visible. where exhibit, point and avoid a collision riding in which he is filed shows that at a as an train or trains- center the inter between same and a 25 feet north railway operated track or section, being on such a clear of the there was view do, far the curve to track to the west as as tracks. omission without therefor, negligence south, and train on the track reasonable excuse that a person will an action as far dis defeat could without doubt be seen injury to which south or administrator bridge tant the overhead his for an as (Emphasis west, away. evi contributes.” than Such more 500 Ohio, ex added.) Since as should have consideration on the law dence full pressed State, control directed Backus v. that motion for Courts of verdict. case, Cir., 444, rule is 447; A. B. the Ohio Taplin, decision 81 F.2d 7 248, rulings Co., or superseded modified Small v. not Lamborn & 267 U.S. Co. Supreme 300, the U. Court or of our Court 69 L.Ed. 597. S. 45 S.Ct. application involving the Federal Rohrs ruling case has been Employers Act or in Liability approved followed in several subse 25, prior April 1938. Ellis decided Pennsylvania quent R. cases. Co. Ohio Co., 649, 653, U.S. R. Union Pac. 329 v. 530, 826, Rusynik, v. 159 117 Ohio St. 598, L.Ed. ___; R. Erie Co. 91 S.Ct. 67 538; Pennsylvania 56 A.L.R. R. v. Co. 817, 64, Tompkins, 58 S.Ct. v. 304 U.S. 621, Moses, 8; 125 St. 184 N.E. Pat Ohio 1188, 1487. This 82 114 A.L.R. L.Ed. Co., ton v. R. Ohio 136 St. previously followed the Court has 159, 597; Lang, 24 Adm’x v. Penn N.E.2d facts involving ruling a case from Ohio Co., App. sylvania 18 R. Ohio 59 present quite to those in the similar 271; Ry. City N.E.2d Grove v. District erred holding Court that App. 37, Patton the railroad verdict for directing not Supreme case is the latest ruling the evidence. company of all at the close crossing acci Court of Ohio in railroad Cir., Joseph, Co. Baltimore & O. R. cases, dent been called to our denied, 312 U.S. certiorari F.2d The Court said attention. denied, 682; rehearing 312 U.S. 714. trial have holding that court should defendant,— for directed a judgment the entry Following rushing a mile-an-hour “Here was verdict and set pellant aside moved away over when toward him not 240 feet judgment in its favor for judgment and place safety 40 been in have previous for motion accordance At his slow rate of feet from tracks. verdict, in the alternative directed stopped speed truck al have could trial, 50(b), provided by Rule as newa instantly. proceeded, He neverthe most Procedure, 28 U.S. Federal of Civil Rules attempted to cross less, the tracks 723c, motion following section C.A. the train when it was less over ahead accordance In overruled. away. seconds than three stated, this motion- views above with the verdict and sustained, the it be said that such should have been “We think cannot aside, judgment entered judgment set on his manifested the exer- conduct remanded case is care, appellant. The conduct was cise of due action in accord- proximate cause of his death.” the District Court not views. 24 N.E.2d with the above ance 601.] [136 and, hour; (dissenting). per excess 5 or miles after MARTIN, Judge Circuit point passing a rail- 20 feet west of the The ma- judgment. I would affirm the track, had even down from road slowed correctly conceive, opinion, jority speed. The locomotive which struck substantial record contains states that north toward backing automobile was com- appellant railroad evidence that speed at a not more than negligent pany operating its train in a hour, not probably 8 miles “and more manner, and that than half that at the time of the col- proximate cause accident. lision.” The of Ohio as- But is held that the district conclusively serted that “the record shows verdict in have directed favor been more appellant on the issue of than time 50 or 75 feet after away authority primarily negligence, upon the passed of the automobile driver Detroit, pronouncement T. I. & highway feet west 493, 503, Rohrs, Co. v. Ohio St. railroad track.” 151 N.E. bar, In the the train which struck duty to under definite look as well lis appellee’s at the railroad automobile cross- ten, point that he look from a “and ing traveling city was within limits aat looking and a time that will make the speed as between miles estimated 30 and 40 danger apprise him effective to whether is per traveling hour. That is was fast doctrine, stated, or This near not.” as by undisputed testimony established the approved applied in Patton caught the automobile was engine front of the was carried in In the circumstances of position feet the about before cases, each the Court of these Moreover, stopped. train was the automo- Ohio held that the trial court should have destroyed by bile was the Two collision. directed the defendant. witnesses, very though disinterested my thinking, To each the facts the accident, of the heard no scene present stronger cited cases a much show- pile whistle A ring. blow or bell of earth contributory negligence part the ing of weeds, partly covered on the railroad plaintiffs respective of the than the evi- right-of-way, obstructed view a traveler’s plain- dence the reveals the that, according witnesses, to several tiff in case at bar. entering the Without person in traveling an automobile would upon a long factual discussion m a dis- required be come within 5 or 10 feet merely senting opinion, I desire to com- the railroad track could before he obtain case, ment in the Patton the that, a clear track to the the view of west. undisputed under the asserts that facts positively testified that he plaintiff’s decedent, he. when reached stopped car about feet his 8 or point tracks, south had a track, listened, ways looked both headlight clear of the view approaching and neither nor saw heard that, crossing east for 582 feet train before he started across inter- he when feet south of gear; section in second and that he was tracks, he could have seen head- in middle when track he dis- So, greater light distance. at an even covered the west. 3 feet to Ob- unquestionably deduction was drawn that viously testimony, his believed headlight he could have seen experienced judge, able train, chargeable approaching law, learned in saw who and heard with what have seen been having witnesses, upheld the verdict. plaintiff seen. In the Rohrs had years facts, for more than three lived within Upon join these cannot crossing and, feet of the railroad about 100 different not minds rea- accident, morning sonably arrive at different clear conclusions as driving plaintiff whether or not the guil- from that started distance toward speed gear contributory in low ty at a not con- bring place observation at such time and as proximate cause tributed aas purpose. be effective for that On injury. The issue of hand, ques- driver was, view, while an automobile plainly other my looking and listen- duty submitted rests under the jury, to be tion of fact instructions. track of appropriate and correct before railroad crosses aware, whose existence statement in I do not construe plaintiff in not a matter it is looking respect making case unqualified of law his absolute and implying absolutism. If “effective” as track, stop goes upon before he un- in an abso “effective” construed word be less disclosed listening sense, every motorist who exercises lute presence moving dis- train.” The ap to see an but fails looking, due care you trict “If find charged further: train, from re be barred proaching would proven prepond- that defendant has where his car was covering case plaintiff him- erance of the evidence that Surely crossing. railroad struck at a directly guilty self was intent the Su been the could riot have proximately in- contributing to his own in preme Ohio, because such an injuries alleged in the manner face of terpretation would fly plaintiff can- defendant its answer then contrary. A many adjudications to the damages recover and un- company ex does not der your such circumstances verdict should crossing. at a street right way clusive charged for the defendant.” The court Cody, U.S. Texas P. R. Co. v. & you find that also: “If 1132; Am.Jur., 17 S.Ct. 41 L.Ed. plaintiff complains brought were section 493. negligence about as the result of sole defendant, of and that such Co., In Robinson v. of the defendant was di- 43, 83, 58, 88, Ohio St. N.E. decided proximate rect and injury cause of such or case, Judge Allen, now of after the Rohrs any negligence without court, Supreme writing then for the plaintiff having directly contributed Ohio, a upholding Court in of verdict-for thereto, proximately in then upon plaintiff in based col- an action a your plaintiff herein should and an au- lision between a railroad train you necessary and would be as- it grade crossing, at “While tomobile a said: damages.” sess or The determine the duty an automobile rests driver carefully correctly explained court had listening of before crosses cause, proximate jury that in rela- he is a railroad track of whose existence plaintiff’s tion either aware, as a matter law his it of is not negligence, the defendant’s is cause with- a unqualified duty stop be- absolute out which "the accident would not have upon such railroad track un- he goes fore happened and which did in the natural looking or discloses the listening less course of events and without other efficient presence moving a train.” of independent bring cause about the in- language juries in plaintiff. Almost the identical in Supreme of Ohio the Rohrs Court judgment, In my charge was cor- Robinson the trial case and rect, pursued and the court the correct incorporated judge in the instant case into in submitting course to the the issue pertinent prin- to the charge contributory negligence, pur- instead of ciples in the two “It declared thus: suing a course of taking absolutism in plaintiff, also as he was the jury and deciding case from the that issue tracks, over the railroad to cross against of fact the direct testimony 6f sight hearing his senses exercise plaintiff. my It is view that' the district approach- whether a discover judge, well aware all author- crossing and also pass about to majority opinion, cited in ities includ- his duty it was make over such ing cases, and Patton acted in peals, Wilkeson, in sub- consonance with authorities in Adm’r Erskine & these Son, Inc., 228, mitting contributory negligence 218, 227, 229, the issue Ohio St. jury. N.E.2d holding divided prejudicial court com- that error had been Mendelman, In Glasco v. 143 Ohio mitted overruling the trial court 649, 656, 655, 210, 213, decided defendant’s motion for a verdict. directed 1944, July 26, highest de- Ohio court holding Ap reversed the of the Court of clared it to be the of the state settled law peals that, a matter -of state that motion for directed verdict involves law, plaintiff “the con an admission all the facts which the evi- proximate cause, pre tributed to the evi- prove, tends to construing dence recovery.” vented stated: party dence strongly most favor of “That Appeals], on [the against made; whom the motion is appeal questions alone, au law where from minds the evidence reasonable thority question prox to determine the upon any reach conclusions different imate cause law as matter of where question jury; of fact the issue is minds is such that reasonable' and that “the not whether trial test is can arrive but one conclusion. How judge would set aside verdict on ever, where the evidence rea is such that weight of the evidence.” The statement: sonable can arrive different con minds quoted last Lodge to Hamden credited upon question clusions then it one 469, v. Ohio Fuel Gas Ohio St. fact jury.” for determination quotation 246. Liberal N.E. from 39 Ohio language Judge Allen in Trent Jurisprudence 183, 799, 182 and sections Cox, man v. 118 Ohio St. made, including assertions 715, 716, quoting Huddy Auto judge, ruling trial a motion for (8th mobiles Ed.) quot section verdict, should directed consider evi- only may ed: “‘Not one street cross a light dence favorable to the most front neg of moving vehicle without his party made, against whom the motion is ligence conclusively established, being but susceptible”: “of which such evidence is not, it is also need held matter indulge ” law, constantly watch the vehicle.’ every possible consideration in favor of sub- Moreover, in the Glaseo the State jury. mission case the to Wil- Supreme Knapp Court said: “In v. Bar quoted approval keson cited and rett, supra 226, (216 [428], N.Y. 110 Hilleary 212, in v. Bromley, 146 St. 429), Judge Cardozo said the law does not 221, 222, 823, 23, 64 N.E.2d January decided say even pedestrian that because a ‘sees Compare Co., 1946. Childe v. Street R. 80 wagon approaching, stop he must it has till App. 128, February 17, decided 1947. passed. go He may forward it is unless emphasize I desire upon quo- to the him; following neg and whether he is opinion tation from ligent the going Ohio Su- question forward will abe preme Court in the which Wilkeson jury. -used eyes, has If expresses viewpoint long to which I danger, the may miscalculated still adhered: “The fact there be was differ- That statement is in free from fault.’ ence of among the the members of weight upon with the authority line this Appeals, Court of all of whom ex- subject are and is the established law of Ohio. perienced jurists, suggests at least that rea- Cox, supra, See Trentman v. and Smith v. minds can reasonably sonable come to more Cabs, supra 415, Zone Ohio St. 21 [135 respect than one conclusion in of the evi- Under the 336], evidence in the dence in case.”' this instant case might reasonable minds well have arrived at upon different conclusions practical would protection add the question proximate the cause and there of the guarantee constitutional of trial question fore it was jury.” fact the for requires jury forbearance and restraint supplied.] [Italics upon part judges of both trial Again, 9,May 1945, pellate Supreme judges in setting findings aside the Court of Ohio Ap- upon fact, reversed the juries upon Court of issues

382 Co., 6 ground Highfill dif- In & R. v. Louisville N. that reasonable minds could 874, applied the Cir., 154 questions cor- upon fer submitted F.2d opinions The com- doctrine of rect the two last-cited instructions as the law. to Supreme intelli- experience, bined This doctrine Court. observation Co., applied they from later R. gence jurors Ellis v. Union Pac. are —drawn ___. equip 649, 598, many 329 91 better U.S. S.Ct. L.Ed. activities 67 of life — Walczak, Cir., F. In R. fact issues Wabash them controverted Co. v. to decide 763, argument rejected that mere part than possible would be 2d failure able, intelligent conscientious to discover a most riding our Con- judge. least, plaintiff automobile in which the At framers adoption positive that the was thought proof struck constituted stitution so their occupants exercise Amendments. car failed Sixth and Seventh duty continuing going care Tennant, P. Peoria & U. R. In Adm’x v. long grade city. crossing in a Our court Co., 35, 409, 88 L.Ed. 29, 321 U.S. 64 S.Ct. recognized ago action for dam 520, Supreme United Court of ages personal injuries, unless the in Appeals States, reversing Court of ference to be drawn from facts is Circuit, a two the Seventh plain as to legal make it conclusion one cited vote decided cases one neg plaintiff guilty v. majority opinion [Moss jury. ligence, left that issue must be Co., are not “Courts 146 F.2d said: 673] Sanford, Judge a mem See later reweigh set aside free the evidence Supreme ber of United merely because States, in v. Baltimore & O. R. Winters inferences could have drawn different Cir., Chicago also & E. 177 F. 44. See feel judges because conclusions or 690, Ponn, Cir., 682, 689, R. Co. F. v. reasonable.” other are more results [321 therein; Toledo, and the L. cases cited Moreover, in 29, Laven U.S. 64 S.Ct. 412.] 776, Cir., Howe, & Co. 191 F. W. R. 653, Kurn, 645, der, Adm’r v. U.S. 785, Compare and the there cited. Supreme L.Ed. S. Ct. Cir., Carolina, Stroup, 6 & R. Co. v. C. O. pronounce recently strong made Court 239 F. dispute or facts are in ment: “Whenever men fair-minded the evidence is such that years More than 50 ago, the inferences, measure may draw different plain be demonstrated how required conjecture speculation and showing plaintiff that a guilty of con- whose it is settle of those tributory before that issue Only inference. reasonable the most properly jury. be withdrawn from the by choosing what them dispute seems Egeland, Northern Pac. R. Co. v. 163 U.S. complete proba is absence when there And, 16 S.Ct. L.Ed. support the conclusion reached tive facts to shown, pronounce- been most recent where, appear. error But a reversible does stronger. even ments are evidentiary here, basis for there is verdict, written dissenting free discard jury’s greater length than I inconsistent should have desired whatever facts disbelieve are my for the reason it is appellate lhat firm And the conviction conclusion. with its majority that evi exhausted when constitutes de- function court’s parture apparent, being decisions of our court becomes dentiary basis many adjudicated might the court draw issue immaterial what contributory negligence another con of constitutes inference feel contrary of law was as matter reasonable.” reviewed. clusion is more

Case Details

Case Name: DETROIT, T. & IR CO. v. Yeley

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Dec 22, 1947

Citation: 165 F.2d 375

Docket Number: 10471

Court Abbreviation: 6th Cir.