213 F. 129 | 6th Cir. | 1914
Plaintiff’s intestate, while driving with his wife and daughter across the tracks of defendant at Crab Creek Crossing, so-called, adjacent to Youngstown, Ohio, was struck and instantly killed by defendant’s passenger train. The wife suffered fatal injuries from the collision. This suit is brought to recover for the death of the husband.
The accident occurred on December 21, 1906, at about 4:30 p. m. It was already dark, and snow was falling. Several hundred feet west of the crossing Hubbard Road connects with Wick avenue (extending northerly from Youngstown), and‘runs easterly across the creek, and then crosses the railroad tracks practically at right, angles. The Fake Shore and the Erie maintain each a double track at this point; the two railroads paralleling each other (the Lake Shore being
The complaints which we shall discuss are, first, that the court excluded as a ground of actionable negligence the failure to provide a watchman or gates at the crossing; second, the refusal to permit the plaintiff to show’ that within 2 years previous to the accident there had been three fatal accidents at this same crossing from Erie southbound passenger trains, as well as “other numerous escapes from like accidents” in that period; third, that the court in its charge upon the subject of contributory negligence placed too severe a burden on decedent.
1. The charge as to contributory negligence. Decedent was 52 years of age. He operated a farm, a country bank, and a coal mine. His habits were good. He was familiar with the crossing in question, being in the habit of driving over it in going to and from Youngstown. The daughter testified that they waited about 10 minutes after - the freight train passed before crossing the railroad tracks (apparently an exaggerated estimate of time); that her mother sat in the middle and was driving, her father being upon the mother’s right, the daughter being upon the left side of the carriage, the top being up, and side and back curtains on; that after the freight passed the father told the mother to look up the tracks, and he would look down; that both leaned forward and looked,-and that the daughter looked; that both the father and mother continued to look while crossing the tracks, the father saying, “Be careful, there is more than one track;” that no bell or whistle was heard, nor any light seen (except that of the freight); and that there was nothing to indicate the approach of the passenger train until they were struck. The speed of the freight train was variously estimated by those operating it at
(a) That, if the Lake Shore train “was there as described by the witnesses, and [decedent] started right back of that train to cross within a few feet, that would be plainly negligence on his part, and he cannot recover. That is quite apparent.”
And (b) that, if decedent “could have waited and allowed it [the freight] to pass and escape injury, but he did not, and as soon as the train was a few feet over the crossing he started and was struck, then he cannot recover,”
(c) That, if decedent and his wife started to drive upon the tracks when the rear end of the freight train “was only 2 or 3 yards over the crossing, vour verdict should be for the defendant.”
And (d): “I will say to you, as a matter of law, that if the only obstruction to decedent’s view of the approaching train was in passing of the Lake Shore freight train, or the smoke from the engine thereof, your verdict must be for the defendant, if, under the other instructions I have given you, you find this smoke or steam was of a temporary nature, and it was his duty to await the removal of such obstruction after the Lake Shore train left before attempting to cross the tracks.” Defendant construes the first three paragraphs of these instructions—which we have indicated as (a), (b), and (c)—as meaning only that, if decedent drove upon the tracks immediately in the rear of the freight train, “without waiting a sufficient time to enable him to have a proper view of the track,” no recovery could be had.
If this is_all the instruction meant, it would not be subject to criticism. But "we think the use of the expression “a few feet” was unfortunate in its indefiniteness, and that the use of that term might be consistent with' a movement of the freight train far enough to permit a clear view of the Erie track for a sufficient distance. Moreover, there was testimony that the smoke from the rear pusher engine of the freight train settled in a southeasterly direction, which would be toward the Erie track. If decedent did not know of the presence of this smoke, he would not be negligent in failing to observe an .approaching train concealed thereby. While, in one portion of the charge, decedent’s knowledge of the existence of this smoke as a temporary obstruction to the view was evidently intended to be submitted as an ingredient of contributory negligence,
“The frequency of accidents at a particular place would seem to be good evidence of its dangerous character—at least it is some evidence to that effect. * * * Besides this, as publicity was necessarily given to the accidents, they also tended to show that the dangerous character of the locality was brought to the attention of the city authorities.”
In Chicago & N. W. Ry. Co. v. Netolicky (C. C. A. 8th Cir.) 67 Fed. 665, 672, 14 C. C. A. 615, which was an action against a railway company for damages for an accident at a grade crossing, it was held proper to permit witnesses familiar with the locality to testify to narrow escapes they had had at the same crossing, in connection with descriptions of the locality, for the purpose of showing the nature of the crossing and the difficulties of travelers in passing over it. In Patton v. Southern Ry. Co. (C. C. A. 4th Cir.) 82 Fed. 979, 983, 27 C. C. A. 287, the rule of the admissibility of proof of other accidents was applied in the case of the derailment of a train at a sharp curve1 at the foot of a steep grade. See, also, Smith v. Sherwood Township, 62 Mich. 159, 165, 28 N. W. 806, where, in an action for negligently permitting a hole to remain in a bridge, at which a horse became frightened, evidence that other horses had shied at the same hole was held admissible.
We think testimony of accidents at this crossing from Erie southbound passenger trains should have been received, as well as proof of alleged complaints by the public authorities to the defendant subse
“It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first shown that such crossing is more than ordinarily hazardous; as,.for instance, that it is in a thickly populated portion of a town or city, or that the view of the track is obstructed either by the company itself or by other objects proper in themselves, or that the crossing is a much traveled one, and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of bustle and confusion incident to railway or other business, or by reason of some such like cause.”
We think there is nothing in the Ohio statute—Gen. Code, § 588— (authorizing the Commission to require gates, alarm bell, or a flagman) which, as matter of law, relieves the railroad company from failure to adopt such precautions as the particular circumstances may require, even in the absence of express direction by the Commission. The correctness, therefore, of the court’s action in thus relieving defendant, as matter of law, .from the duty of maintaining gates or watchmen depends upon whether the undisputed testimony shows that the crossing in question was merely an ordinary country crossing, oi whether there was evidence from which the jury might properly find the presence of such unusual features distinguishing from the ordi
The crossing in question was just outside the city of Youngstown, and since the accident has been brought within the city limits. This Hubbard Road, or Crab Creek Crossing, was a regular thoroughfare from Youngstown to Hubbard and'other places. In the short space of time while decedent was waiting for the passage of the freight train, and attempting to make the crossing, at least four pedestrians crossed the tracks, as well as two other buggies; part of this travel being in one direction and part in another. It appeared that at least two of these pedestrians ■ were factory workers in Youngstown, on their way between their homes and their work. Just west of the track, and abutting on the northerly side of the road, was a lumber manufacturing plant, office and yard, and at the connection of Hubbard Road and Wick avenue there was a small store. The photographs introduced in evidence show several houses in the vicinity of the crossing, but do not indicate a “populous district.” It seems inferable from the record that no crossing light was maintained. The testimony as to surrounding conditions, as affecting the dangerous nature of the crossing, is very meager; but it appears from experiments by photography from the crossing that from the center of the Erie track in question, and at various points ranging from 10 to 34 feet west thereof, there was a clear view of 3,300 feet up the track, and at 48 feet west of that track a clear view of 2,500 feet, and at 74 feet distance a 700 feet view. We have found no satisfactory evidence as to the actual extent and nature of the railroad traffic over this crossing, or the extent of the highway travel thereover. As to the latter, the testimony is generally to the effect that the crossing was “much used” or “much traveled.” One witness (the fireman of the Erie train in question) testified (by an affirmative answer to a leading question) that he knew the crossing was “greatly used, * * * particularly so”; and the same witness, in answer to a question whether the reason for keeping the bell ringing between Hubbard and Youngstown (about 7 miles) was that they “were going down hill and dangerous crossings,” said:
“It is dangerous all the way down and you got different things to look out for and besides shutting off the bell all the time.”
The judgment of the district court is reversed, and a new trial ordered.
The previous instruction was in these words:
“There is some testimony as to the escape of smote and steam. It is wellestahlished law that, when a traveler approaches a crossing, and there is a*133 temporary bank of steam and'Smoke, he should wait until it clears up, and, if he does not stop, he is guilty of contributory negligence. And if this man Edwards saw the bank of smoke and steam from this train, the Lake Shore engine, and he disregarded it and drove across, he cannot recover in this action.
“As I said before in reference to this Lake Shore train moving across there, if he could have waited and allowed it to pass and escape injury, but he did not, and as soon as the train was a few feet over the crossing he started and was struck, then he cannot recover.”
The last paragraph contains the clause we have above indicated as (b).