257 F. 675 | 6th Cir. | 1919
Plaintiff below, Schneider, recovered verdict and judgment for $3,525 against the railroad company,
We cannot think it necessary to discuss the various assignments of error set out in the record. A motion made at the close of all the testimony to direct a verdict for defendant was denied. No grounds were stated in support of the motion, but they are to be inferred from exceptions reserved to the court’s charge and to its refusal of a particular request. It is objected, for example, that one effect of the court’s instruction was to permit the jury to find under the evidence that it was negligence on the part of defendant to operate its train over a country crossing, as here, at a speed of 25 to 30 miles an hour. Upon this subject the court charged the jury at some length, saying among other things:
“Ordinarily, if it [railway company] exercises tiie duty and degree of care required—that is, ordinary care—to notify and to warn persons of the approach of its trains, it may in the open country operate its trains across a highway at any rate of speed it sees fit, consistent with the safety and the operation of its trains; and the rate of speed will not, in and of itself, without other circumstances tending to impose other duties and obligations on the defendant company, constitute an act of negligence.”
“If the view of this train, approaching from the east, was obstructed by weeds, shrubs, or trees, or anything else, it was the duty of the plaintiff to stop, if that was necessary, in order to see or hear the approaching train.”
This was presented at the close of the general charge, and in its stead the court instructed the jury thus:
“If the situation was such that the plaintiff could not see an approaching train, that imposed upon him a higher degree of care in the exercise of his other faculties to ascertain whether or not a train was approaching. I do not say to you, as a matter of law, that it was his duty to stop his automobile or Ms vehicle in that situation; but if, not being able to see, and if the noises were such that an ordinarily careful and prudent person would have stopped his car in order to listen before undertaking to cross, then the plaintiff here would be guilty of contributory negligence if he attempted to cross without-stopping hio car to ascertain whether or not a train was approaching.”
Plaintiff appears to have looked and listened with reasonable diligence before entering upon the crossing, but it does not appear that he stopped his machine. It is said that his own testimony “at least tended to show that he was guilty of contributory negligence.” This would seem to be true if we consider only what the plaintiff said of the obstruction
Moreover, the opportunity to hear the approach of the train is also to be borne in mind in connection with the instruction refused and the one given. It is reasonably clear that the approach of a train was discoverable through the sense of hearing. It is not shown that plaintiff’s truck was a noisy machine; he was driving on what defendant’s engineer describes as a “cinder road in good condition”—Hawkins road; and while it is true that an automobile overtook plaintiff, sounding its horn, and passéd his machine shortly before he reached the track, yet these circumstances were calculated at most to show only .momentary diversion of plaintiff’s attention and the reasonably low rate of speed at which it otherwise appears he was traveling. Furthermore, defendant filed a motion for new trial based on grounds substantially including the contentions made here; and this is important because of the trial judge’s denial of the motion, notwithstanding his opportunity to see the witnesses and hear them when delivering their testimony. It was not the province of the judge to weigh the evidence when passing on the motion to direct, but when he came to consider the motion for a new trial he was required to weigh the evidence. Big Brushy Coal & Coke Co. v. Williams, 176 Fed. 529, 532, 99 C. C. A. 102, and citations (C. C. A. 6). In overruling the motion, Judge Westenhaver said:
“An examination of the brief and authorities therein cited in support of this motion for a new trial leaves me with the opinion entertained during and at the conclusion of this trial, namely, that the plaintiff’s contributory negligence was on the testimony a question for the jury, and that the verdict of the jury is not so manifestly against the weight of the testimony that X would be justified in setting it aside.”
Further, while the trial judge did not permit the circumstance to in
The judgment must therefore be affirmed, with costs.
The presence of the Garman road, which extends from the Hawkins road in a northeasterly direction and some 30 feet south of the .railroad, and its relation to some of the testimony, are not overlooked; but specific discussion of the testimony in that respect would not be helpful to a right understanding of the opinion.'