200 F. 533 | 6th Cir. | 1912
This was an action for personal injuries resulting in the death of plaintiff’s decedent, Myers. At the close of the evidence offered by plaintiff, on motion of defendant, a verdict was directed and judgment entered in its favor; and the case is prosecuted here on error.
Myers received his injuries on the evening of February 15, 1908, while in the employ as motorman of an electric street railroad company and engaged in operating one of its cars across the main track of the defendant at a street crossing in Eucas county; the electric car being struck by a passenger engine (with train) of defendant at such crossing. The railroad crossing is in Phillips avenue. This avenue runs east and west, and defendant’s main track runs in a north and south direction to and across the avenue and for some distance north of it. Within less than 70 feet west of defendant’s main line is the line of the Lake Shore & Michigan Southern, which runs parallel to that of defendant. The defendant maintains one siding across the avenue east of and adjacent to its main track, and the Lake Shore two adjacent sidings west of its main track. Four protecting gates had been placed in position to lower and raise across the avenue, one on each side of the tracks of each of such companies, and had been operated from a tower by one man in the joint employ of the two railroad companies. An electric gong had also been placed in position and in use at this crossing by the defendant. All of the gates and the
The usual course followed by the railroads to protect the crossing when the gates were in order was to operate them together from the tower, and when not in order to have the towerman act as flagman at the crossing. The gong, when in order, was also sounded when trains were passing. It seems not to have been the practice to permit street cars or vehicles of any kind to stand between the inner gates during the passage of trains; indeed, the car that deceased was operating at the time of the collision was longer than the distance between such gates. Shortly before the collision two street cars going in opposite directions had reached the crossing. The one on the east side, hound west, was standing on a switch awaiting the crossing of She car on the west side, and the latter was the one that was struck by the locomotive. When this car approached the Take Shore track, it was stopped, and its conductor, in obedience to a statutory provision in this behalf, went forward to look for approaching trains, and to signal the motorman to cross the tracks with his car, if the conductor found them clear. The conductor passed over the Take Shore tracks, and thence along the avenue, either to or close to the main track of defendant, when with his lantern he signaled his motorman to come ahead. There was testimony tending to show that the habit of the motormen, on receiving such signals, was to put on power sufficient to start the car and drive it across the tracks of both roads, in order to avoid consequences of stalling in case of trouble with the trolley and wire. Upon receiving the conductor’s signal, the motorman moved his car forward until its rear trucks had reached the Take Shore tracks, when the conductor signaled to stop, indicating the approach of a train on defendant’s track. There was testimony tending to show that this signal was received too late to stop the car, and that the prudent course to adopt was to put on additional power and endeavor to cross ahead of the approaching train; that the motorman adopted this course; that, owing to excessive speed of the train, the collision occurred when the rear truck of the street car had almost reached the railroad track; that the street car was severed, one portion being thrown to the west and the larger portion to the east of defendant’s track, and the train running several hundred feet before it was stopped.
The grounds of the motion to direct in substance were (1) that no actionable negligence was proved against defendant; (2) that from the testimony adduced a presumption arose of contributory negligence of the motorman, and that this was the proximate cause of the injury. The conclusion reached by the learned trial court was that the act of the street railroad conductor in giving the signal to cross the track “was the last or proximate cause of the accident”; holding, further :
•‘This is, of course, not exonerating the Michigan Central Railroad Company [defendant] from carelessness or negligence, but it is simply applying*536 to tile case the doctrine of proximate cause and finding the other company responsible for the accident to its motorman.”
It is fairly to be inferred from this, we think, that the trial court believed the evidence tended to show negligence of defendant, but not contributory negligence of deceased.
• Section 8853 of the Ohio Statutes (4 Page & A. General Code, p. 349) in terms imperatively requires every locomotive used on such a track to be equipped with'whistle and bell, and the whistle to be sounded at a distance of at least 80 and not further than 100 rods from the crossing, and the bell to be rung continuously until the engine passes the crossing; and a failure to comply with these provisions is, by section 8855, penalized, and section 8856 imposes on the railroad company liability in damages to a person or company injured by such neglect. The statute is general and comprehensive, and we perceive no sound reason why it was not applicable, at least the requirement as to the bell, in this instance. Rothe v. Pennsylvania Co., 195 Fed. 21, 24, 114 C. C. A. 627 (C. C. A. 6th Cir.). See, also, Street Ry. Co. v. Murray, 53 Ohio St. 570, 42 N. E. 596, cited below. We say the bell, because of a claim, made by defendant,, that Phillips avenue is within the, corporate limits of Toledo, and that an ordinance of that city prohibits sounding the whistle of a locomotive within such limits. We do not deem it necessary now to decide whether such an ordinance can prevail as against the terms of the statute, for the reason that the omission to ring the bell, if such omission occurred, presents the question of negligence of the railroad company quite as certainly as would the omission also to sound the whistle. Moreover, it is disputed that Phillips avenue is within the corporate limits.
And, moreover, it is not within the province of the court on such a motion to weigh the evidence. Mitchell v. Toledo, St. L. & W. R. Co., 197 Fed. 528, 533 (C. C. A. 6th Cir.). See, also, Rochford v. Pennsylvania Co, 174 Fed. 83, bot. 98 C. C. A. 105 (C. C. A. 6th Cir.). We are therefore of opinion that it was error practically to withdraw the testimony tending to show that the bell was not sounded, and so to reach the conclusion that the proximate cause of the injury was the first signal given by the street railway conductor to the motorman.
"Tñe true rule is. that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to he determined as a fact, in view of the circumstances of fact attending it.”
See Southern Pac. Co. v. Yeargin, 109 Fed. 436, 439, 48 C. C. A. 497 (C. C. A. 6th Cir.); Winters v. Baltimore & O. R. Co., 177 Fed. 44. 50. 100 C. C. A. 462 (C. C. A. 6th Cir.l; Erie R. Co. v. White, 187 Fed. 556, 559, 109 C. C. A. 322 (C. C. A. 6th Cir.).
The judgment below will be reversed, with costs.