244 F. 72 | 6th Cir. | 1917
Plaintiff in error was plaintiff below. Her intestate was killed by defendant’s switch engine at a highway crossing in the village of Kent, Ohio. The trial court directed a verdict for defendant, on the ground of contributory negligence. Danders, the man killed, was under no contract relationship with the railroad.
The accident happened about 9 o’clock, p. m., on April 22d. Danders was on foot, going west. There were two north and south railroad tracks, constituting the double track of the main line. The crossing was protected on both sides by gates, and supplementary arms from these gates barred the sidewalk passage. Danders lived in town and was familiar with the situation. As Danders approached the crossing, there were obstructions to his view toward the south; but as he passed these obstructions, and came near the east rail of the east track, he had a clear view to the left down the west track for 500 feet. The switch engine which struck him approached on the west track from the'south, running backward. A party of three undertook this crossing; Danders was a stranger to the other two, and was walking from 6 to 10 feet behind them. As they all approached and. crossed the location of the east gate, that gate was open, and a street car had just come across from the west. Either then or just before, the west gates closed. They were certainly closed as early as the time when the two- men ahead were approaching the west track and Danders was upon the east track. The two men left the sidewalk and went diagonally north, in order to pass between the west gates at about the center of the street. They saw the engine coming, knew that they had scant time to get across, and they did barely do so. Just as they wefe upon or entering upon the west track, they looked back and saw Danders following them on the same diagonal path and only a few feet behind them. After the engine passed, they did not see him, and investigation disclosed his body 30 or 40 feet north, where it had been dragged by the engine after he was hit.
It is doubtless true that there are circumstances where the existence of a defect in the crossing, which caught a traveler who had negligently attempted to cross, and held him until he was hit, would serve to support a recovery; but this, it would seem, must be either because the engineer was not diligent in stopping after he saw the traveler’s predicament (Dickson v. Chattanooga Ry. & Light Co., 237 Fed. 352, 150 C. C. A. 366), or because the holding, in what proved to be the trap, was long enough continued so that the contributory negligence in attempting to cross might be thought to have exhausted itself, and to have been superseded by defendant’s existing and continued negligence in maintaining the trap, so that thus it might be said that the contributory negligence was no longer a concurrent cause. The circumstances of this case lend no support to this theory. If there were a catching and holding, they were practically only instantaneous. The result was only that which would have followed almost any kind of misstep. To say that defendant’s maintenance of the defective crossing was a supervening or proximate cause, taking effect after, the
The judgment must be affirmed.