Mearns v. Baltimore & O. S. W. R.

284 F. 31 | 7th Cir. | 1922

Lead Opinion

ALSCHULER, Circuit Judge

(after stating the facts as above).

To justify the directed verdict the evidence must be such as to warrant no other conclusion than that (1) the accident was not caused by negligence of the company, or (2) negligence of the deceased contributed to the accident. Do the facts necessarily establish one or the other of these propositions ?

In the first is involved tlie questions: Did the company properly guard the crossing at the time of the accident? Ought the company to have given a signal of the intended starting of the train, and, if so, was a signal given, and, if given, was it under the circumstances shown to have been reasonably proper? Was the traveled part of the street so blocked by the train as to relieve the company of any duty of guarding the crossing or giving a signal before starting the train?

The second raises the queries: Did deceased know or ought he to have known the danger to himself in attempting to cross? Was he warned of the danger of attempting to drive across, and was the warning such as ought to have deterred a reasonably prudent man from crossing the track? Was the street at the crossing so obstructed by the train that a reasonably prudent man would not then have undertaken to cross? Did deceased before driving on the track take such precautions to avoid accident as, under like circumstances, a reasonably prudent person would have taken?

Bearing on , all these questions there appears a conflict of evidence, and as to none of them can it be said there was no evidence tending to support the cause of action.

We therefore conclude it was error to direct the verdict, and the judgment is accordingly reversed, and the cause remanded for another trial.

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Dissenting Opinion

EVAN A. EVANS, Circuit Judge

(dissenting). The evidence in this case bearing on the issue of contributory negligence is such that I cannot subscribe to an order reversing the judgment entered in the court below. Deceased’s own neglect, resulting in his untimely death, is so thoroughly established that there was nothing for the trial judge to do hut to take the case from the jury.

In his haste to get home, deceased ignored the warning of his passenger, and of his threat to jump from the car if the attempt to cross the tracks was carried out, ignored the warning given by the driver in the other waiting automobile, ignored the warning which the long line of standing cars sounded, the last one of which extended halfway across the street and more than halfway across the planks over which the automobiles ordinarily traveled, and, without ascertaining whether a switching operation was in process, drove his car on the tracks within a few feet — in fact within a few inches — of the end of the last car, and there met the bump and the disaster which was inevitable if the cars moved at all.

Upon such a record the issue of contributory negligence was one of law for the court to determine.