Appellee was injured in a railroad crossing accident on Route 7, approximately one-half mile south of Middleport, Meigs County, Ohio, on January 4, 1957. He recovered a verdict in the United States District Court for the Western District of Pennsylvania against the appellant railroad.
The railroad claims that the trial court erred in charging the jury that if they found that it violated the Safety Appliance Acts (45 U.S.C.A. §§ 1-9) and the rules of the Interstate Commerce Commission, which together require that a “train” shall not be operatеd without having air brakes functioning in at least 85% of the cars being moved, they should find the railroad negligent. The section of the Safety Appliance Acts requiring power brakes contains no exceptions. However, court decisions have stated that switching, сlassifying and assembling cars within railroad yards for the purpose of making up trains, and the movement of a few cars at a time for short distances, involving coupling and uncoupling, are not train movements. United States v. Northern Pacific Ry. Co.,
Not content with establishing that the hose which carried the air for the freight car brakes was not hooked up to the engine, and obtaining an admission from the engineer that he was not looking in the direction the train was traveling between the time it entered the crossing area and the moment of collision, plaintiff offered evidence to show that the crossing was extra hazardous or unusuаlly dangerous and that defendant knew this fact. In this connection, the trial court, over defendant’s objections, permitted plaintiff’s counsel to read to the jury defendant’s answers to interrogatories and request for admissions. These answers and admissions gave infоrmation concerning eight collisions between motor vehicles and defendant’s trains at the crossing during the hours of darkness between August 11, 1950, and September 17, 1956, four of which occurred while the train was standing on the crossing. Also over defendant’s objection, plaintiff’s counsel was allowed to read to the jury, from the deposition of the Prosecuting Attorney of Meigs County, questions and answers as to the number of vehicle accidents occurring at the crossing from 1950 to 1955 during the hours of darkness. The deposition listed fourteen aсcidents from November 24, 1950, to November 10, 1955, and gave the times and dates of the accidents and the drivers’ names. The list contained no other explanation. The trial judge instructed the jury that the information concerning the accidents was permitted to be intrоduced solely for the purpose of showing that the railroad had notice of the nature of the crossing, and not to show negligence on the part of the railroad. In Ohio, unless the crossing is unusually hazardous, a railroad need comply only with the statutory provisions and the orders of the Public Utility Commission regarding warning signs or signals. A crossing is unusually hazardous if there is substantial risk that a driver in the exercise of ordinary care may be unable to avoid collision with a train operated over the crossing in compliance with stаtutory requirements. Hood v. N. Y., Chicago & St. Louis R. Co.,
The railroad also contends that the trial court should have ruled that plaintiff was contributorily negligent. An answer to this contention, we think, requires more than a brief statement of the evidence. Two sets of tracks, owned by the railroad, intersect Route 7, a two-way concrete highway, at approximately right angles. The crossings are at grade. *477 The tracks at this point are approximately 75 fеet apart. To a motorist traveling in a westerly direction in this vicinity, Route 7 curves slightly to the left in a wide arc. 1 About 375 feet east of the first set of tracks is a circular metal sign bearing a black cross and the letters “RR” to warn motorists that they are approаching a railroad crossing. Approximately 20 feet east of the first set of tracks and 15 feet to the right or northern edge of Route 7 is a wooden pole with white crossarms bearing the words “railroad crossing” in black letters. Beneath the crossarms is a black sign with the notation “2 Tracks” in white letters.
A sodium vapor lamp, installed and maintained by the railroad, hangs 25 feet above the ground from the arm of a pole situated 14 feet east of the first track and 10 feet north of the highway. When lit, this lamp casts a yellow light. This lamp is nоt very effective for it illuminates only a small area directly beneath. At night, particularly when it is raining, snowing or foggy, the light hinders rather than benefits motorists as to the position of a train on or approaching the crossing. Even when such adverse weather conditions are not present, as a conductor of the railroad put it, the light was such that a motorist could “sneak right up” on railroad cars on the crossing without knowing they were there. 2 As for approaching trains at night, the rays of the headlight blended with those of the sоdium vapor lamp. As a safety measure, because of the deceptive lighting at this crossing, a member of the train crew was required by the railroad to drop a lighted flare to the left side of the track facing the direction in which the train was going when the еngine approached the crossing, and to repeat the dropping of a flare on the other side of the track after the train had traversed the highway.
There is no sign, signal or light on either side of the highway between the two sets of tracks to indicatе the presence and location of the second set of tracks. The second or more westerly set of tracks was a main line, and there was no curve or fixed object to obstruct a motorist’s view of that track for a distance of at leаst 200 feet to the south of the highway. The pattern of the railroad crossing signs and the sodium vapor light described was duplicated on the other side or southern edge of the highway for motorists driving in the opposite or eastwardly direction on Route 7.
At about 6:45 on thе morning of January 4,1957, while it was yet dark, plaintiff was operating a tractor and trailer loaded with steel wire in a westerly direction on Route 7 where it crosses the railroad’s double set of tracks. It was cold and partly foggy. The tractor and trailer weighed over 28 tons. When plaintiff reached the circular sign, he reduced his speed and lowered the window on his left side to shoulder level so that he could hear the sound of any approaching train. The headlights of the tractor were on high beam, and the windshield wipers were in use. As he approached the first set of tracks he reduced his speed to between 15 and 20 miles per hour. After he crossed the first set of tracks without mishap, he was in doubt as to where the second set was located and was on the lookout for it, believing that it would be but a few feet away from the first. He observed the second sodium vapor light on the other side of the highway, but he did not hear the sound or see the beam of light of any approaching train. When he was within 20 feet of the second set of tracks, he saw a flash of red light to his left. The red light came from a flare that had been thrown from the engine as a warning to motorists traveling in an eastwardly direction on Route 7, warning of the engine’s presence. When the tractor-trailer reached the second set of *478 tracks, it collided with the right front corner of the drab-colored engine going in a northerly direction (or from the plaintiff’s left) and drawing the 37 freight cars at a speed of about 3 miles an hour. After the collision, the engine moved about two freight cаr lengths, dragging or pushing the tractor-trailer with it before stopping. Plaintiff made no attempt to stop his vehicle prior to the collision because he was unaware that the engine was on the crossing. The engineer did not apply the brakes of the engine until immediately after the impaot because prior thereto he was not looking in the direction in which the engine was moving.
Under Ohio law, the contributory negligence of a plaintiff is a complete bar to his recovery. Patton v. Pennsylvania R. Co.,
The railroad claims that plaintiff should have been aware of the presence of the train in time tо have stopped his vehicle. Plaintiff was not required to stop his vehicle unless his looking or listening disclosed the presence of a moving train. Robinson v. Pennsylvania R. Co.,
The judgment will be affirmed.