22 F.2d 69 | 6th Cir. | 1927
The defendant in error recovered a judgment on account of the death of his intestate, his minor son, under the circumstances described in our opinion in this ease upon a former appeal (6 F.[2d] 873) and involved in the Overholt Cases (C. C. A.) 4 F.(2d) 1021.
Upon the trial there was substantial evidence that the statutory warnings by whistle and bell were not given. Hence there was a ease for the jury upon the issue of the railroad’s negligence.
We are unable to see that, assuming there was negligence by the railroad, the conduct of the bus driver in failing to observe Ms statutory duty to ascertain whether a train was coming, if he did fail to observe it, could be considered as the sole proximate cause of the disaster, or as more than that contributory negligence, for which Ms passengers did not carry responsibility. See Kline v. Pa. R. R. Co., C. C. A. 6, 9 F.(2d) 290.
.In addition to the above-stated ground of negligence, the trial judge submitted to the jury two additional grounds: The second, that the train was running at a rate of speed higher than due care under the circumstances permitted; the third, that warning signals or precautions, in addition to those required by the statute (Gen. Code Ohio, § 8853), should have been given or taken by the railroad. It is more or less probable, perhaps very likely, that the jury would have found negligence upon the first ground stated, if neither of the others had been submitted; but they might not. Their conclusion may be based upon either the second or the third ground; and, if there was error in submitting either of these, there must be a reversal. We are compelled to find that there was error in both respects.
The cases in wMch the speed of the train, assuming always that it was a usual and customary speed and not forbidden by any ordinance, has been considered as contributing to or constituting the railroad’s initial negligence, fall into two main classes. The first is where there are obstructions such as to be specific obstacles to the free view of each other by the converging train crew and highway traveler, or where the highway has an .unusual amount of travel, . and thus where there is, for one reason or another, an unusually dangerous crossing, in the character of the danger or in the number exposed. Those instances of this class where the railroad has created the obstructions, stand upon special grounds. Excluding these instances, the remaining ones, involving permanent obstacles beyond the railroad’s control, are not all easily reconcilable with each other; but they are not important here, and the principles applicable thereto as to speed are not intended to be foreclosed by this opinion. See B. & O. R. R. v. Goodman, C. C. A. 6, 10 F.(2d) 58. The other main class involves the ordinary country crossing, where the view of all concerned as they approach it is free and unobstructed, so that, in the daylight and ordinarily, each party in looking must see the other. It is this second class of crossing which is here involved and which we recently considered in B. & O. R. R. Co. v. Reeves (C. C. A.) 10 F.(2d) 329, decided since the trial now under review. After further consideration, in view of the facts and arguments in tMs case, we see no occasion to recede from the position announced in the Reeves Case as to such a crossing*, and under ordinary conditions.
We again approve and adopt, as we there .did, the doctrine of Railway Co. v. Kistler, 66 Ohio St. 326, 64 N. E. 130, where it was said: “As the General Assembly has the power to reasonably regulate the speed of trains, not only in cities, but also in the country, and has failed to exercise that power, as to speed in the country, such failure is an implied warranty to railroad companies to run their trains in the open country at such rate of speed as those in charge of the same may deem safe to the transportation of passengers and property, such safety, however, being the paramount consideration. As there are road
It was further held that, although a high rate of speed, when taken in connection with “other facts and circumstances,” might become a,n element in constituting negligence, yet no such other facts were pleaded. Upon this point we find no distinction between the facts there pleaded and those here proved, with the single exception that here there was a heavy fog. As to the class of crossings now involved, this cannot change the rale. The impairing of visibility by fog or snow is a common condition. Highway crossings in the country very commonly come once a mile. If it were in the discretion of a jury to say that it is negligence to maintain regular and ordinary speed, within any reasonable limits, through the open country in a fog, it would be necessary, under such a condition, to abandon all time schedules.
Nor in the facts in this case, considered in connection with the speed maintained and all the other circumstances, do we find anything to support a conclusion that reasonable care might have dictated the giving of signals or the taking of precautions beyond those required by the statute. It is somewhat impressive to say that under unusual conditions more than the usually ordinary care may be necessary by the engineer to warn highway travelers, and so to say that “further reasonable precautions” should be taken while running in a fog; but such abstract terms only confuse accurate thought. No court or jury can rightly base a conclusion of liability on this proposition, unless it can say what precaution was omitted which should have been taken. Under the facts of this case (assuming that all statutory warnings were given), that omitted step can only have been another whistle, in addition to the requirement of the statute which calls for the blowing of the whistle not less than 80 nor more than 100 rods before coming to the crossing and for the continued ringing of the engine bell, but does not specify gates or a watchman or a crossing bell at such a crossing as this. At the speed at which this train was running, as variously estimated, the statutory whistle would have been given not less than about 20 seconds or more than about 45 seconds from the crossing. Upon plaintiff’s proofs— 40 to 50 miles per hour — the time interval would be from 18 to 28 seconds. This seemingly must be a commonly effective warning, to all exercising due care. The customary two long and two short blasts occupy several seconds. In addition, it is, for this specific discussion, to bo assumed that the bell was constantly ringing. Another whistle, to be of any substantial warning service, would have had to be within 10 to 15 seconds after the first one
Such a whistle warning, 80 to 100 rods away, followed by this constant ringing of the bell, has been fixed by the Legislature as what should be required for the ordinary crossing; and, if reasonable care could require further warning, it is because of some special circumstance. Here there was none, excepting the fog. That alone we think not sufficient to justify a jury in finding a duty to repeat the whistle within some 15 seconds, when the Legislature has prescribed the ringing of the bell to cover this interval.
We find no authoritative or persuasive case in which, as to an open and free country crossing, with no obstructions to the view either permanently existing or caused by the railroad, with the train running at ordinary and normally proper speed, and with no interference with vision except a dense fog, it has been held that there is lawful basis for any reasonable person to conclude that due care required a repetition of the statutory whistle within a few seconds. The cases cited for plaintiff have been examined. They all involve either no signals at all, or the presence of other obstacles to sight and hearing.
These conclusions make it necessary that the judgment should be reversed, and the record remanded for a new trial.
We may add that the ease 'would have been a very appropriate one for taking the opinion of the jury by a special question as to the specific negligence which they found to exist. The trial judge may often, on his own motion, submit such a question, with benefit to the public interest. If the jury had thus indicated a finding that the statutory signals were not given, this reversal — very unfortunate on account of the history of the case — would have been unnecessary. As it is, if the case is tried again upon substantially the same record, the issue will be very simple. If the statutory signals were not given, there is no defense; if they were, there can be no recovery.
The logical result of the contrary view is to hold that the jury has the right to condemn the engineer unless he runs so slowly as to be able to stop within the distance he can see ahead. This result was frankly accepted by the Alabama court, in Hines v. Beasley, 17 Ala. App. 636, 88 So. 31.
Tlie warning of a whistle depends upon its audibility. Conditions of visibility are unimportant. There is no evidence, nor can we take notice, that any fog, even if dense, will substantially interfere with hearing the ordinary locomotive whistle at a distance of 80 rods. On the contrary, it is familiar, in admiralty cases, that whistles are usually heard through fog at distances much greater than this — though they may seem further away than they arc and may not truly indicate their direction. Doubtless the present statutory regulations were made and the proper time and distance intervals calculated with reference to the speed of horses in highway travel. A general revision may now be appropriate, but courts and juries cannot make it.
The record in this court in the Weinstein Case shows that the negligence charged was the failure to give any warning, and the failure to have guard gates or a watchman at a crossing which was over the main- street of the city, a much traveled highway, and at a point where the view was obstructed by permanent buildings, as well as by the snowstorm. The only “further precaution” mentioned in the briefs is the watchman or gate.