No. 2515 | 3rd Cir. | Apr 19, 1920
Blanche Ee' Barr was killed in a collision at a grade grossing on the defendant’s railroad. Victor E. Ee Barr, her husband, brought this action to recover damages for her death, charging, as the defendant’s negligence, first, its failure to give warning by bell or whistle of the approaching train, and second, the act of its crossing flagman in signalling the driver of the vehicle in which his wife was riding to pass over the tracks in front of the train. The verdict was for the plaintiff. By this writ the defendant brings
The facts of the plaintiff’s case, stated briefly, are these: Be Barr and his wife were traveling in an automobile owned and driven by. Charles Brensinger. Be Barr was sitting with Brensinger on the front seat; Mrs. Be Barr was sitting on the rear seat. The car was open except for side curtains in the rear.
The tracks of the railroad were three in number, comprising, as approached in this case, first, a westbound track; next, a central high speed eastbound track; and last, a low speed eastbound track. The •highway crossed the tracks at an angle of approximately 45 degrees:
It was dark when the automobile party drew near the railroad. The crossing and its surroundings were wholly unfamiliar to them. On reaching a point about twenty to thirty feet from the first track Brensinger stopped the car, and observing a flagman on duty, signalled him by a blast of the horn. While awaiting a reply, Be Barr looked up and down the tracks and saw nothing; he listened and heard nothing. Brensinger with his eyes on the flagman also listened and heard nothing. As the flagman made no response to his first signal, Brensinger sounded the horn a second time by three or four blasts. Then the flagman turned and gave- a signal to pass over. In response to this signal Brensinger drove the car towards the railroad at low speed. When the front wheels reached the first track, Be Barr for the first, time saw a train, but he could not tell which track it was on. Brensinger did not stop the car on the tracks, nor did Be Barr ask him to do so, but continued across, with the result that the car just missed being struck by a fast freight east bound on the central track and was lightly struck by a slow freight east bound on the third track, deflecting the car from the road toward a ditch. Mrs. Be Barr was found under the car dead.
The defense was, in substance, that the flagman did not signal the party to cross; that warning of the approaching train-was given by bell and whistle, and that if the plaintiff had listened he would have heard; that, viewed at various points within a hundred feet of the railroad right of way, the tracks were visible for distances ranging from five hundred and eighty feet to half a mile; that if the plaintiff had looked when the car stopped he would have-seen the oncoming train; or, if, at that point his vision was obstructed, he should have stopped again at some point nearer the tracks, where, upon looking and listening, he could have seen and heard the train; and that the plaintiff’s failure so to do constituted contributory negligence which the court should have found as a matter of law...
As the jury have found for the plaintiff on all controverted issues of fact, we shall, of course, review the case as established by the verdict. Of these issues the one brought here for review on the defendant’s claim that it was an issue of law, and was, therefore, erroneously submitted to the jury, is that of the plaintiff’s contributory negligence. This issue was based on facts proved by the defendant and not rebutted by the plaintiff, and concerned the failure of the plaintiff to see and hear the approaching train when he stopped, or his failure to stop again and to see and hear the train, which, it was insistently claimed, was, most of the time, within his sight and hearing. In the defendant’s claim of an extended view of-the traces there is the implication of a restricted view' at different points, thus presenting .a question with reference to -which we regard the law' as settled.
In imposing this rule of duty upon the plaintiff in this case, we must inquire what were his surroundings and what he did with reference to them. Fie was bound to guard himself from danger in both directions. The defendant showed by its own testimony that there was from this crossing a peculiar combination of extended and restricted views of the railroad tracks. While at certain points within one hundred feet of the tracks the view' up the tracks was, undoubtedly, open and extended, there were, nevertheless, obstacles to the vision of one stopping at other points within this distance. These comprised a watchman’s box, an outhouse, a cluster of telegraph poles, and a gradually rising embankment with a water tank on top, none readily discernible in the dark. To one stopping between these obstacles, the ' view of the tracks varied in extent; but to one stopping behind them, the view was obstructed; in some instances, partially; in others, wholly. So also, to one moving toward the tracks from a point twenty or thirty feet distant, the view up the tracks closed and opened intermittently as these obstacles were encountered and passed. While
It cannot be' disputed that the plaintiff obeyed the primary requirement of the rule by stopping, looking and listening at some place. The jury have found that on stopping he did not see or hear the train. Whether this was due to the accident of stopping behind one of the several obstacles does not appear, but having once stopped, looked and listened and haying moved on only upon the flagman’s signal that he might cross in safety, the question is, whether the rule imposed upon the plaintiff the imperative duty again to stop, look and listen without reliance in any measure on the flagman’s .signal, and whether, accordingly, his failure so to do amounts as a matter of law to contributory negligence.
As a precaution against misunderstanding, we distinguish not the law, but the facts in this case from those in N. Y. C. & H. R. R. Co. v. Maidment, 168 F. 21" court="3rd Cir." date_filed="1909-03-12" href="https://app.midpage.ai/document/new-york-cent--h-r-r-v-maidment-8770196?utm_source=webapp" opinion_id="8770196">168 Fed. 21, 93 C. C. A. 413, 21 L. R. A. (N. S.) 794
The judgment below is affirmed.