44 F. 574 | U.S. Circuit Court for the District of Southern Ohio | 1890
(orally.) This action is to recover damages against the Baltimore & Ohio Railroad Company for injuries received on the 1st of August, 1888, at Locust Grove crossing, about four and one-half miles south of Newark, by the collision of a train with the horse and buggy in which the plaintiff was then riding with her mother, who was driving. The accident occurred about 12 o’clock at noon of that day. The testimony of the mother is that, between 10 and 11 o’clock, she started with her daughter from their home, 12 miles from Newark, intending to go to that city. They were in a phaeton buggy, the top of which was up, and the side curtains off, so that the view was unobstructed. When they reached “Hog Run Bridge,” as it was called in the testimony, which is about a quarter of a mile from the crossing, they began, according to her testimony, to watch for the train. She states that they were watching for the noon train. They drove very carefully, according to her evidence. There was no sign of the train. Passing from the bridge, they went up a little hill, where they could see the track, and could have seen the train if it had been there; but they saw no train. Passing on up to the top of the hill, they drove carefully. Saw uo sign of Lie train. At the top they stopped and listened, but heard nothing, and then drove slowly down the hill. She testifies that at the top of the hill they wore about 50 yards from the crossing; that it was near train time, or, as she expresses it, “it was very close.” Must have been 12 o’clock, she testifies, and that the noon train was due at 12. According to this testimony, gentlemen, the mother know that the time for the approach of the train was at hand. Then, according to her testimony, they went down the hill slowly. On the right-hand side, which was the side from which the train from the south would approach, there is a bank, and a field of growing corn, 10 or 12 feet high, which, she states, shut out any view of the train; that by reason of those obstructions they could not see the- track nor an approaching train until, as she expressed it in her testimony, they were within a very short distance
The ground of recovery in such an action as this must be the negligence of the defendant. That is not to be inferred as matter of course, nor from the mere fact of the occurrence of the accident; in other words, the happening of the event does not raise the presumption of negligence on the part of the defendant. The burden of proof is upon the plaintiff, by which it is meant that it is necessary for the plaintiff to establish, by a fair preponderance of testimony, that the negligence which is required to entitle a recovery occurred. By a preponderance of testimony is not meant, necessarily, by a greater number of witnesses, but that the testimony shall fairly preponderate,- — that is, make the stronger impression upon your minds. For instance, one witness may create a stronger impression upon a jury, and properly so, than half a dozen witnesses testifying to the contrary, because by the manner, candor, and intelligence of a witness his or her testimony may so impress itself upon the jury as to overcome in weight the testimony of half a dozen other witnesses. That is what is meant by a preponderance of evidence, — that it shall produce a stronger impression. Ordinarily, witnesses being equal in other respects, the number of witnesses would control; but, as I have just stated, it is not necessarily so. Now there are mutual duties attending the approach of a train and the approach of travelers where the railroad crosses the highway at grade. The law requires that the railway company, under such circumstances, shall sound its whistle at a distance of at least 80 rods, and not more than 100 rods, from the place of crossing, and that the bell shall be rung continuously until the engine passes the crossing; and the law of Ohio expressly provides that, if either or both these signals are omitted, the railroad company shall be liable lor any injury or accident happening by reason thereof. I will have occasion to speak of this further on. There is a duty also upon the plaintiff in every case, and that is to exercise ordinary care and prudence in approaching a crossing, taking into account the perils to be encountered, and all the other circumsiances attending the approach. The degree of care required is that which persons of ordinary care and prudence are accustomed to employ for safety under like circumstances. It is the duty of a person approaching such a crossing to look and listen, whether he be in a vehicle or on foot, — to watch for the approach of the train; and especially, gentlemen, if the person approaching knows that a train is to be expected at or about the time, is this duty of watching and of listening and of care increased, because, manifestly, the care must be according to the circumstances; and if the crossing be a dangerous
Something has been said in the course of argument with reference to the speed of the train. Gentlemen, I do not understand that it is the; duty of those in charge of a railroad train to slow up upon approaching a (;rossing. One object of railroad passenger transportation is to accomplish a, high rate of speed. The statute has prescribed the signals which are to be given, and they furnish the precaution which is ordinarily to be observed in approaching a crossing. There is a rule that when a train is passing through the streets of a city or town, — and it may apply in tlie immediate vicinity, where a large number of persons may be expected to be passing, — that the speed shall be slacked according to circumstances; but ordinarily the rule requires only that the proper signals shall be given. For instance, in this case, the testimony is that the whistle could be heard a distance of two or three miles, (as I recollect the testimony, certainly a distance of a mile,) which is greater than the distance between the train, when, according to the testimony, the whistle was sounded, and the plaintiff and her mother in the buggy. There is testimony that the bell could he heard for at least as far, and in the country, where ordinarily everything is quiet, and but few persons passing, the road not crowded, these signals would generally be sufficient to properly guard against danger at the crossing,' if they were sounded. Now, gentlemen, I have to say to you, with reference to the approach of the plaintiff and her mother to this track, that if at a distance equal to that indicated by the mother (the line across the courtroom) from the place where the horse was struck the track could be seen, and if they know, as the mother testifies they did, that it was about, the time for the train, it was unquestionably their duty to stop and listen there. The fact that between the top of the hill, at a distance of 50 yards from the track, they wore at the last point where they could see the train, and from there down to the end of the corn-field they had been passing over a little piece of road where the track and the train were not visible, would make it the more necessary to stop and take the precaution of looking and listening before going on the track. Now is there any evidence in the case that they did stop, or is the evidence, on the other hand, that they continued, slowly, it is true, but nevertheless without stopping, from the top of the hill light onto the track? if that was the case, gentlemen, why, sad as the results were, the claim against the railroad company could not be maintained. It is not the mere fact of the happening of the accident that lays the foundation for a recovery. It must be based upon satisfactory proof that there was not only negligence on the part of the defendant, but that there was no contributory negligence on the part of the plaintiff. With reference to the proposition that there was contributory negligence, the burden of proof is upon the defendant, and you must be satisfied of that by a preponderance of evidence before you find that there was contributory negligence.
But before you come to the question of damages, you must be satisr tied that there is a ease for damages. If, upon the testimony, you find that the whistle was sounded and that the bell was rung, that there was no negligence on the part of the defendant, why, of course, that is the end of the case. And if you find that either of these was omitted, and that nevertheless the plaintiff, or her mother without remonstrance from her, suffered or moved onto that track without stopping to look or listen, why that would be the end of the case. It is said, and said very truly, that the plaintiff would no’t be responsible for the negligence of her mother, who was driving. That is true, but in that event it was just as much her duty to look and listen as it was the duty of the mother, and just as much her duty to suggest that they should stop and look and listen as it was the duty of the mother to stop and look and listen, and her duty to protest if that was not done.
I have been asked to give you some charges, a portion of which I will give you.
The testimony is that the train did not stop after the accident, but proceeded directly on to N ewark. With reference to that, the engineer says that he did not see the horse or the wagon;, did not know anything about the accident until some time after they had passed. The fireman just at the moment of striking did see the horse, and saw a piece of the shaft of the buggy fly past the window. He communicated it to the engineer. Well, gentlemen, if it were a question whether this injury was wantonly inflicted, 1 think that testimony would he significant. If there were anything indicating that there was any intention or any wanton disregard of the safety of these people, the fact that the train was moved light on by, without stopping it, would be proper to be considered. There is no such testimony, and therefore what occurred after the accident could hardly ho said to have any bearing upon the question of negligence before the accident.
“If the plaintiff, immediately before the horse stepped on the track, could have seen the approaching train in time to stop, had she looked, the presumption is that she did not look, or, if she did look, that she did not heed what she .saw, and in either case she was negligent, and cannot recover.” That f give to you. It is in substance what I have already given you in charge.
“If the plaintiff could have heard the whistle sounded, and did not hear it because she did not listen for it, or, having heard it, did not heed it, she was in either case guilty of contributory negligence, and cannot recover.” That is correct, also.
With reference to the sounding of the whistle, gentlemen, I think it proper to call your attention to the consideration that this was a crossing which, according to the testimony of the mother, both the plaintiff and her mother were well acquainted with. It was on the road between their home and Newark, and they passed over it frequently. Now we all know that sounds to which we are accustomed we sometimes hear without being conscious thereof, — without taking note; and in weighing the testimony as to the sounding of the whistle and the ringing of the bell it is fair to take that into account: but, on the other hand, take also into account the testimony of the mother that they were looking and watching for the train, which would tend to cause them to notice the sounding of the whistle, if it was sounded.
“The fact that this was a dangerous crossing increased the care required of the plaintiff in approaching and driving over it in proportion to the danger to be apprehended. Tf the crossing was extraordinarily dangerous, it required extraordinary care and caution on the part of the
These, gentlemen, are all the suggestions that it occurs to me to give to you. You may take the case, gentlemen.
ON MOTION FOR NEW TRIAL.
(December 12, 1890.)
The first ground upon which a new trial is asked is newly-discovered evidence. It appeared upon the trial that the plaintiff has been, since the accident which caused the injury for which she seeks recovery, subject to epileptic fits. The testimony of the physicians on her behalf tended to prove that these were caused by the depression of the inner table of the frontal bone of the skull, by concussion at the time of the accident, and consequent pressure upon the brain. The defendant now produces affidavits that several persons (naming them) have stated, and will testify, that the plaintiff was subject to epileptic fits before the time of the accident. But, oh the other hand, the plaintiff produces affidavits from each one of the persons named, denying having made such statements, and denying that the facts existed to which it was said they would testify. This ground for new trial is therefore not sustained.
The next ground is that the court erred in not directing a verdict for the defendant. It is argued in support that the only negligence alleged or sought to be proven against the defendant was the failure to sound the whistle of the locomotive and to ring the bell, and that the proof was all the other waj' so clearly that the verdict should have been directed as asked. With reference to the sounding of the whistle, several witnesses, including the engineer and fireman, did testify that it was sounded, and, while quite a number of persons testified that they did not hear it, no one testified that it was not sounded. But some of the witnesses testified positively that the sounding of the whistle was at Hog Run bridge, which, according to the testimony, is 2,480 feet from the crossing where the accident occurred, and that it continued about five seconds, the train running at the rate of 40 miles an hour, or 56 feet per second. From the whistling-post to the crossing the distance is 1,080 feet, so that, according to that testimony, the whistle w'as not sounded when the train was nearer than 2,150 feet to the crossing. Section 3336, Rev. St. Ohio, provides that the engineer or person in charge of the locomotive in motion, approaching a road-crossing at grade, (and such was the crossing where the accident in this case occurred,) shall sound the whistle at a distance of at least 80 and not further than 100 rods from the place
The next ground for new trial is that the court erred in charging that the burden of proving contributory negligence was upon the defendant. Tt is admitted that the charge was in accordance with the general rule in the United States courts; but it is urged that this action is one under and by virtue of sections 3336 and 3337 of the Ohio Statutes. Section 3336 makes every engineer or person in charge of a locomotive engine moving upon its road, who fails to comply with the provisions of section 3337, personally liable to a penalty of not less than $50 or more than $100, and also makes the company liable in damages for such neglect, where the injury results therefrom. Counsel for defeiidant claims that therefore the rule of evidence must be as recognized in the state courts; that to warrant a recovery it must be shown that the failure to give signals was the proximate cause of the accident, and that the burden of proving contributory negligence is on the plaintiff. Pennsylvania Co. v. Rathyeb, 32 Ohio St. 72. The answer to this proposition is twofold: First. This is not a statutory action. It is true that the failure to sound the whistle and to ring the bell is alleged as negligence on the part of the defendant. But the case stated in the petition is clearly upon the common-law liability of the defendant. The statute, however, may bo referred to to determine what constitutes negligence in Ohio as to giving signals on approaching a crossing. Second. If it were an action under the statutes, I do not think the rule relating to the burden of proof would thereby be
The next ground for motion for a new trial is that the jury disregarded the charge of the-court. I do not think this is sustained. It was conceded upon the trial that the plaintiff herself had no recollection of what occurred at the time of the accident, and therefore could not testify. She was placed upon the stand, and a question put to her; but the excitement of the situation brought an epileptic fit upon her, and it was necessary to take her from the stand, and away from the court-room. It was then stipulated that she could remember nothing about the accident. The mother, however, who was riding with her daughter, and driving, testified that they drove very slowly as they approached the track, and that both she and her daughter were continuously looking and listening. A short distance before they reached the crossing, according to her testimony, they stopped, and looked and listened. Her testimony therefore tended to prove that all the precautions that were necessary were taken by her and by her daughter, and therefore that the negligence complained of on their part did not exist.
It is further urged that the verdict is against the weight of the evidence. I have examined the stenographer’s report, and am satisfied that the case was one for the determination of the facts by the jury, and that, whatever may be my own opinion as to the correct findings of fact to be made, it is my duty to leave the parties to abide by the verdict. The motion for a new trial will be overruled.
This case was tried at the June term. The motion for new trial was argued at Cincinnati, just before the present term of the court at Columbus, The verdict was for $5,000. The counsel for the plaintiff, desiring that there should be no review of this case by the supreme court, now moves for judgment for the amount of the verdict, without interest. Counsel for the defendant, on the other hand, insists that thejudgment shall be with interest from the date of the verdict until the entering of the judgment. Counsel for the plaintiff claims that this court should follow the law and procedure of Ohio in matters not otherwise provided for by the laws of the United States, including the entering of judgments in eases of tort', and refers to the Revised Statutes of the United States, section 966. He refers also to section 3181 of the Revised Statutes of Ohio, which provides for interest upon all judgments, decrees, and orders of any judicial tribunal for the payment of money, but not for interest upon verdicts; and he insists that the judgment should be for the amount of the verdict, without interest. The contention of counsel for the defendant is that the provisions of section 966 of the Revised Statutes of the United States, and of section 3181 of the Revised Statutes of Ohio, with regard to interest on judgments, are substantially the samé, and that the construction of the statutes should be the same. Also that, under section 5375, Rev. St. Ohio, a judgment becomes a lien on the lands of the judgment debtor within the county from the first day of the term; and so in the federal courts the judgment
“A judgment rendered in an action pending at the first day of the term draws interest from that day, and includes interest on the debt up to that day. Judgments on confession, in actions commenced during the same term, take effect only from the day of entry, drawing interest from that day, and include interest on the debt up to that day. ”
Sproat's Ex'r v. Cutler, Wright, 157, (1832:) “ Interest will be allowed on awards and verdicts, where payment is delayed, up to the time of judgment.”
He also cites Redfield v. Iron Co., 110 U. S. 177, 3 Sup. Ct. Rep. 570; Owens v. Railroad Co., 35 Fed. Rep. 715; Steam-Ship Co. v. Merchant, 133 U. S. 375, 379, 10 Sup. Ct. Rep. 397; New York El. R. Co. v. Fifth Nat. Bank, 118 U. S. 608, 7 Sup. Ct. Rep. 23; The Patapsco, 12 Wall. 451.
Counsel for the plaintiff, in answer to the citation of Steam-Ship Co. v. Merchant and New York El. R. Co. v. Fifth Nat. Bank, cites Bailey v. Mayor, etc., 7 Hill, 146, and refers to the fact that in the state of New York interest is by statute allowed from the date of the verdict. I have conferred with the circuit judge upon this question, and the conclusions in which we concur are as follows: That it is proper to allow interest on the verdict from the date of its rendition up to the entry of judgment. This was done below in Steam-Ship Co. v. Merchant, 133 U. S. 376, 10 Sup. Ct. Rep. 397, and the supreme court sanctioned it, and entertained jurisdiction. It does not appear that the practice was rested upon any New York statute. See, to the same point, Gunther v. Insurance Co., 10 Fed. Rep. 830, where Benedict, J., says: “The item of interest on the judgment from the day of the rendition of the verdict to the day of entry of the judgment, amounting to some $500, may be allowed. The delay was caused by a stay of proceedings during the pendency of a motion for a new trial. This delay should not be at the plaintiff’s expense. The payment of interest meanwhile may properly be deemed a condition attached to the stay, or, if not, an entry of the judgment as of the date of entering the motion for new trial, might, if necessary to avoid damages to the plaintiff, be permitted; but I consider the item of interest on a verdict within the equity of the statute, (section 966,) and for that reason taxable.” See National Bank v. Mechanics' Nat. Bank, 94 U. S. 439, and Dowell v. Griswald, 5 Sawy. 24. To the same effect see Gunther v. Insurance Co., 20 Blatchf. 390, 10 Fed. Rep. 830. In Gibson v. Cincinnati Enquirer Co., 5 Cent. Law J. 446, (this circuit, Ohio,) the rule was laid down that where entry of judgment is delayed by acts of the opposite party, interest on the verdict is proper, whether the action is in contract or tort. If the action is upon contract, the verdict should draw interest from the first day of the term; if ex delicto, from the date of the rendition of the verdict.