Peigh v. Baltimore & O. R. Co

CLARK, Before WILBUR K. MILLER Judges. and WASHINGTON, Circuit WASHINGTON, Judge. case, arising This out moving occu- collision of a automobile pied by plaintiffs-appellants a boxcar defendant-appellee’s standing parked on Street, K running along railroad tracks W., part Georgetown in the industrial N. Columbia. The issue in the District of appeal the trial court raised on is whether defendant, directing a verdict erred was in. the evidence for sides after plaintiffs’ held that as matter law recovery doubly absence of barred — proof defendant’s contributory plaintiffs’ negligence. own case, must In such a the evidence favorable to most be considered Shifflett, Higashi plaintiffs-appellants. 1952, U.S.App.D.C. 195 F.2d 784. viewed, are these: the main facts So placed unloading on boxcar had place consignee’s front of its track reflector equipped with dence it was at an Friday, July business on burning and a red oil-lantern. down specified. track ran hour not Street, K east-west the middle of is: there sufficient first Was The boxcar approximately 56 feet wide.1 part negligence evidence of on the following loaded, there, on the was still plaintiffs-appellants entitle railroad to P.M., when evening, 9:30 at about this, go jury? appellants to the As to night was The accident occurred.2 provides rely Regulation on a Police visibility was “rainy,” “misty,” “dark”: parked that railroad cars shall not “be or street poor, though there was a even stored on a street for an unreasonable Appellants 100 of the boxcar. feet east They regulation time.”3 contend that the during quantities of beer had drunk small violated, and that this constituted was driver, Griffin, rail- day. saw The negligence se, per doctrine of within the K along drove west as he Hartman, 1943, road tracks 78 such cases Ross v. and he them before 217, 14, ITe had seen U.S.App.D.C. Street. A.L.R. 139 F.2d 158 moving 1370, 1944, 790, daytime certiorari denied 321 U.S. were used knew 790, know 88 around, did not 64 S.Ct. L.Ed. 1080. but he railroad cars space The parked on them. ever cars were We think the trial court was cor rest paved like the the tracks was between putting rect this contention out of view. driving in or was Griffin of the street. regulation Whether fact violat the rail- middle of the near the decide, do ed we not now for the reason that tracks, of con- “possibly” because road per doctrine se is being freeway built on a struction work opinion applicable our here. Violation of speed 25 miles an 20 or overhead. His regulation not, ipso facto, give does rise when saw the loaded boxcar hour. He first liability civil unless the There was 30 35 feet from it. he was designed prevent one the sort of harm to pass ample 13 feet —to it on room—about relying individual on which has in believed, right, but he because of the occurred. 286 fact Restatement of Torts § construc- pilings (a); Hartman, other indications of supra; Ross v. Exner v. road, Co., Cir., 1931, that the 2 tion work the side of Sherman Power Const. 54 510, 686; 80 impassable right; A.L.R. cf. Union Pacific to the he there- road was McDonald, 1894, 262, Co. 152 attempted pass U.S. unsuccessfully fore 619, applied Further, 14 He his S.Ct. 38 L.Ed. 434. boxcar on its left. brakes it, the doctrine of immediately” when he se “almost saw but is one applied which must be apparently cautiously, with an he skidded: the tracks “held” eye him, to essential If only fairness. its use in and his brakes took “some” effect. particular produce case tends to injuries liabili collision serious to the caused fault, ty any based not on real appellants, damage real and extensive departure prudent, standards con Appellants automobile. some tes- offered duct, only technicality, but on a the courts timony to show that the boxcar was un- apply justifiably reluctant it.4 In lighted; offered substantial evi- See, example, involving parallel cases emer two sets of tracks There were gencies right-of-way; and other claimed excuses: Con laid in a 17-foot the track Griffith, 1910, Ind.App. 218, der v. 61 boxcar was was in on which the 816; Marvel, 1935, right-of-way. 111 N.E. Dukin v. the northern half of 782; 219 Iowa N.W. Irwin v. It had off been moved Judge, 1909, 81 Conn. 71 A. 572. 15 or 20 minutes at time on Sat- some Cf. Restatement of Torts com § urday being while another ear was negligence per c. use replaced around. switched then qualified by se doctrine is also re approximately same track quirement reg the violation of the position. ulation must be shown to have caused XXV, plaintiff’s injury. 3. Art. Sec. Police See Schear Ludwig, 1944, U.S.App.D.C. 95, the District of Columbia. * * * railways general, principle is whether its track cars guiding and to run necessary Sept. application the on said K to effectuate tracks” on Act of Street. view, pres 26, statutory purpose.5 legislative our Stat. 492. But category. within that the street does exoner- ent case does not fall to use consequences of regulation here ate the from the We are clear railroad express promulgated negligence.7 in the interests would involved was acts Nor encouraging park com on the street expediting traffic and boxcars effect, any assuming city. safety passing exonerating even merce in the goal, Regulation that the above not its at least Police discussed motorists was authority. applicable the regarded would make as such sense which parks appears its cars the street with- negligence per se. It defendant on doctrine of authority, may Regula out it a nuisance.8 heading “Miscellaneous commit not tions,” in the lack is to be Vehicle But of and is not found negligence. issue Regulations District. conclusive of the of Traffic of the prohibition is no contained There absolute issue, ap factor On that per regulation: parking is effect is pears this case significance in of most mitted, long so as it is for a reasonable warning quality character and of only. be How reasonableness is time record, it given plaintiffs. present On the appear: not no doubt measured does rear the boxcar is not clear that the problems considered are railroad’s warning to give sufficient lighted so toas property along neighboring with those unlighted motorists. in which Cases .vehi parties. At interested owners and other highways night “usual on cles are is it that reasonableness rate is not clear jury’s de ly present issues of fact for primarily by safety. con measured Bus Harkins Somerset termination.” v. siderations, ordinary true as is 164; 1932, 109, 110, 163, 162 A. Co., Pa. 308 regulation.6 circum Under these traffic 485, Annotation, 104 And A.L.R. 512. see stances, negli we think that doctrine of light boxcar “contained even gence per apply. se not does contended, it still as lights on rear railroad, its as to whether those jury * * * part, points authority, warning gave to its act charge single or double free Congress, as defend- approaching to “maintain vehicles would 20; Finkelman, 1929, Compare 268 Motor F.2d Falk v. the Traffic Vehicle 6. concluding 89; Boronkay 524, Mass. N.E. 168 v. discussed in the Carpenter, 1927, portion 247 N.Y. Robinson & of this important 365, 160 N.E. 400. “Tbs Ry. Pittsburgh, C. & 7. St. v. Ben See thing is whether or omission act Ind.App. 1893, 92, 1033, nett, 9 35 N.E. transgressed pro act which the statute 1036; Baltimore R. Co. v. Fitz cf. & P. injury. not, did duced then App.D.C. 501, gerald, 1894, 2 519-520. violation no statute has bear Nietzey Co., & Baltimore P. 8. Cf. v. ing upon liability.” Lowndes, Civil Lia D.C.1886, Mackey page 34 at 5 42: bility Legislation, Created Criminal express authorization the absence 361, (1932). 16 Minn.L.Rev. 371-72 competent source, the defendant is Morris, also Relation of Crim public highways, entitled “to convert Liability, inal to Tort Statutes 46 Harv. city, the streets of the avenues into (1033). L.Rev. 453 yards. freight proper place See, alia, Hartman, use, supra; depot, inter Danzansky 5. Ross v. cars when is the sta Zimbolist, 1939, App. yard company; v. 70 tion or of the and the * * * 234, 457; place proper freight D. C. som, 105 F.2d Janof New- unload 1931, App.D.C. 291, 149; freight 60 53 right, F.2d is station. has no Capital Apple, 1910, therefore, Traction Co. v. 34 to incumber the street with App.D.C. 559; Clements v. Potomac cars and to leave them theTe when not Co., 1906, App.D.C. Power occupa Electric 26 in use. That is an unauthorized Compare Elgin, public highway.” O’Donnell v. J. & tion of a See also Bal 1949, Co., 384, 390, E. R. 338 Fitzgerald, U.S. 70 timore & P. R. Co. v. su 200, pra. S.Ct. 94 L.Ed. 187. crossings respect blocking Miller with charge negligence.” boxcars ant from a facts; 1942, distinguishable nor is Transp. Cir, on Co, their v. Advance applied where 442, agreed the usual rule in such 446. Here all are cases “special circumstances,” present visibility very poor night like those here, Annota witnesses testified make it unreasonable. See accident. Numerous tion, And a “be light It cannot no boxcar. A.L.R. saw accident, who policeman unlighted investigating the said that the failure to see an boxcar, ap- object headlights range of one’s testified saw the within person parently negligence per Harper until another North failed to see it se.” Co, 1939, Cal.App.2d pointed him. The hunting for it it out to western Pac. R. jury permitted “not plaintiff should to consider A 93 P.2d anticipate used reason- defendant whether the defendant railroad bound to plaintiffs-appellants of the negligently permit able care to warn its car to stand [will] presence the tracks. Cf. unlighted highway.” the boxcar on of a the middle Ry. Corp, supra Corp, Kazan v. Wilkes-Barre 347 Kazan v. Wilkes-Barre The case was thus 35], Pa. 32 A.2d 32. if the box Pa. .32A.2d Even [347 contended, been submitted to lighted, one which should have car was defendant jury negli- question the on the issue of defendant’s we think that on this record the gence. appellants whether were bound to have seen it jury. was for the of the The nature then, brought, We are to the warning by given defendant is relevant to contributory negligence. issue There of appellants’ contributory negli the issue of was substantial evidence of the driver’s way in gence the same that it is to the issue But, taking evidence lack of due care. the appellee’s So, primary negligence. of him, most favorable to we have the primary same reason that we think concluded that the court erred in find trial here, jury question negligence is insofar a ing negligent him matter of as a law. factor, as it think this we contribu turns jurors certainly find that Reasonable could tory negligence be, must also insofar as it they he think was not drunk. We turns on the same factor. speed find his also excessive circumstances, Appellee and that he was under the invokes certain Traffic by the construction work in justified driving and Motor Vehicle for the trying and in Columbia, near the middle of the street District contending that the pass them, the boxcar on the left. His aware to driver violated and guilty was thus contributory ness of the existence of railroad tracks of negligence as a matter of simply most one element to be con law. 22(b) prohibits Section driving at an points. been sidered on these has held imprudent speed unreasonable and under occupying “A railroad track the circumstances. 23(a) requires Section by constantly traffic in an used vehicular closely drivers to as practicable drive as to warning of itself a industrial district is not right-hand side of the road. These are Transp. danger.” safety Watson Bros. Co. v. regulations, to which Co, 1947, Chicago, P. M. & O. St. se doctrine is applicable, on the basis Certainly 880, 25 N.W.2d outlined Neb. earlier this At the duty time, under no to avoid proper driver was same functioning of the portion system of the street where the using jury preserved. must be Both these Pedro, Cromeenes v. San regulations hinge were laid. reasonableness, tracks Co, 1910, 37 Utah A. & S. L. determined in the light of all the facts: mere hitting Neither does the fact of attempt P. 10. do not up precise to set and contributory establish rigid boxcar question standards. The whether such parked lengthwise regulation where was negligence, has been violated is thus one poor conditions of visi under which is ordinarily appropriate for the con neighborhood of overhead bility jury sideration of the in determining an likely distracting work negligence, issue of primary construction or contribu holding tory. Cases otherwise situation, motorists. In this passing application negligence per -se doctrine instructing still leaves defendant, verdict for with issue fundamental with equal blandness reiterated that of course the jury. judge is no more able railroad had an see, I easement. fail to n direct how, a verdict reason of the claimed upon the case, evidence in this violation of such a than he judge trial was able to reach that con- regulation.9 would absence be record, As I totally clusion. read the it is any showing devoid that an easement to contributory negli The driver’s public use the prolonged parking street for any, appel doés not bar the other gence, created, nor proof ever forth- himself passenger lants. Unless fails á coming to indicate in what manner and reasonably might something to do he have pursuant to legal theory what the easement accident, expected to do to avert might have been established or ordinarily entitled recover from granted it, powers, what rights, or defendant, negligent regardless negli appellee might acquired benefits have Certainly passen his gence of driver. so-called easement. here with contribu gers charged cannot be tory negligence my experience practice as a matter law if I private railroads, should represented driver cannot. The a number of includ- O., gone jury. .Miller v. Advance ing the B. & and I had occasion to Transp. Co., supra. number of I examine a easements. never a case where the heard of easement did not wish to underestimate We do proved alleged in its terms have to deprecate weighty which led reasons limitations; moreover, my opinion, verdict for the judge the trial to direct a unusual, least, extremely say the it is reluctance that defendant. It is real permits an which a railroad find easement that he was have reached the conclusion we park company freight public to cars that But think it well to add error. we over a end. street week kind, if is a room for a case of this there opinion, alleged wise course is difference of the an easement is to Whenever go by prescription, trial to the case to must judge the allow its exact terms arisen way by jury. Certainly, deemed the If a verdict is mere use a be defined. evidence, contrary judg particularly to period the such court a over time— public— may non general be entered obstante veredicto. in common with the use is ap by permit court the event of of an inference drawing this Action does-not contrary, judgment entail such would not peal from a an easement exists. On that expense upon prove new trial. of a it must all relying trouble and party Douglass necessary v. elements. given, judgment the reasons For Lehman, 1933, App.D.C. District Court will be Reversed, and the cause remanded. hand, if the easement the other On CLARK, (concurring). Judge by been a written to have created claimed reluctantly very concur the result I instrument, in- instrument must be such by majority. agree I cannot reached Appellee may have into evidence. troduced guilty negli- the railroad was not that September upon the Act of relied se, per I think therefore gence statute which language no I find but have been reversed out- case should permit the railroad construed to right. public its boxcars park block periods of time so as to trial, attorney During the the rail- extended public evidence, at to the detriment of road, introducing traffic without read right cannot be That blandly large. the B. & O. such very announced that adjunct necessary later, judge, the statute as into an easement. had zog, N.E. N.Y. states For case where supra. precise which has cf. cases cited note standard But definite violated, clearly Martin Her- see specifically enumerated powers rights

therein, by almost coincident indicated Fitz- R. Co. v. Baltimore & P.

case Neitzey & P. Baltimore gerald, Co., majority cited principle so well absolutely agree with the I given cases that the in these stated occupy government railroads give does not by their tracks

certain streets right the use of unlimited

them an storage purposes.

streets for prove total failure to there was a Since easement, appellee at of an existence license had a may regarded having

best movements; rail street for actual to use the convert certainly had no auxiliary frcightyard, into an highway semi-permanent obstacle huge,

or to erect a my opin-

directly in the line of traffic. company at

ion, of the railroad the status simply that accident was time of the be revers- trespasser. The case should

of a ground outright

ed proved by conduct of the se was

railroad, unlawfully and without a upon the trespassed right,

measure and entire-

public created an unusual there, and danger

ly zone unforeseeable the accident.

thereby caused Cornelius Doherty, Washington, Mr. H.

D, C., appellant. for Bress, C., Mr. David Washington, G. D. with whom Messrs. M. London and John HOSPITAL HOMEOPATHIC NATIONAL Newmyer, C., Washington, Armand D. v. HORD. brief, appellee. for were Mr. Alvin No. Newmyer, Washington, C., D. also en- appearance Appeals appellee. tered an Court States United Columbia District of Circuit. PRETTYMAN, Before FAIIY and WASHINGTON, Judges. Argued March April 9, 1953. Decided PER CURIAM. appeal an

This is judg from a plaintiff an action for dam ages the death of a days child three old. opinion facts are stated rendered Holtzoff, by Judge denying defendant’s mo for a new trial. tion Hord v. National Hospital, Homeopathic D.C.1952, 102 F.

Case Details

Case Name: Peigh v. Baltimore & O. R. Co

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Apr 9, 1953

Citation: 204 F.2d 391

Docket Number: 11119

Court Abbreviation: D.C. Cir.