The Baltimore and Ohio Railroad Company v. Kate S. Henery, as Administratrix of the Estate of J. Harry Henery, Deceased
235 F.2d 770
6th Cir.
1956
Check Treatment

*1 affecting extending appellee his to and his brief at tempts incapacity back, to to a suffered total assert to an increased award, basing question Mey you labor, answer on will contention then case, interrogatory ‘yes’, calling (a) No. 7 er and effort of prepon- cross-appeal. you cross-appeal find from a taken if fail so No was evidence, course, question appellee and at derance interrogatory tempts you raise cannot considered. will answer be Keller, Cir., 1950, v. Hall ‘no’.” certiorari denied 340 U.S. 71 S.Ct. Throughout the whole the court’s 48, 95 L.Ed. 601. charge repetition and a stress- there We find no error. The being findings necessity of should be and is preponderance evi- based given Affirmed. instructions were ade- dence. The fully accurately quate, covered subject matter of the re- charge.

quested appellant asserts submitting erred not the trial court asking interrogatory jury wheth appellee any incapacity not er or compensa beyond period for which solely preexist paid due to

tion ing was was When trial diseases. conditions BALTIMORE AND OHIO RAIL jury by spe COMPANY, Appellant, to the submits issues ROAD court although interrogatories, vested

cial v. discretion to their form with a wide as HENERY, as Administratrix Kate S. substance, all material factual issues Harry Henery, J. de the Estate of questions ceased, Appellee. covered sub should be Tillman Great American In mitted. No. 12742. York, Cir., 1953, demnity of New Co. Appeals States Court of United the same issue F.2d 588. But need Circuit. Sixth presented. There would twice Aug. 14, 1956. duplication appel been have granted. request lant’s been It Liberty

properly Cf. Mutual denied. Staley, Cir., 1951, 193

Ins. F.2d Co. us would have compen to award

hold that it error eight incapacity weeks due sation appellee’s of use of the foot to the loss

followed a maximum award general incapacity.

weeks account analogous An case of the Texas Courts precedent and sustains the

furnishes

judgment of the district court. Great Indemnity Meyer,

American Co. v. Tex. Civ.App.1954, Meyer 272 S.W.2d Indemnity American Great Tex. 1955, 279 S.W.2d Great American Indemnity Meyer, Tex.Civ.App. Miller, Shackelford Circuit Judge, 285 S.W.2d 276. dissented. *2 Graham, Zanesville, Ohio,

John C. Graham, Graham, Johnston, Gottlieb & Ohio, Zanesville, brief, ap- pellant. Bennett, Columbus, Ohio,

Frank E. Abel, McConnelsville, Emmett Ohio, on brief, appellee. SIMONS, Judge, Before Chief and AL- MILLER, LEN and SHACKELFORD Judges. Circuit ALLEN, Judge. Circuit appeal arose out an action for wrongful filed death in the state court and removed to the federal court on the ground diversity. following The facts are not controverted: On March at about 10:00 morning decedent, o’clock in the driving Plymouth township north Morgan on a road in County, Ohio, proceeded partially across appellant’s railroad track at the so-called Henery crossing, ap- was struck pellant’s running Zanesville, Ohio, Parkersburg, Virginia. West completely automobile was demol- ished and decedent was killed. en- gineer pushed admitted that the car was some 620 feet stopped. before the train township Decedent lived on a road a ques- short distance from the tion, which about 6 miles south of Malta, Ohio, Muskingum River. township which decedent approxi- is a dirt road mately width, 8 feet which crosses grade track at and at angles some north of the railroad track intersects with the coun- ty highway. The river is some 50 or railroad, further north. The Muskingum rail, highway, River feet or over inches and the visible, generally 600 feet of the track in an east- were run *3 bumper when the of the lived car was west direction. The decedent township years and was back from the the rail was road rail 34 only crossing. very .the visible for 121 The testi- At feet. familiar with the mony only 4 of that at feet from the rail the intersection southwest corner of feet was township 121 of the track were visible railroad track road and the the n by .steep 50 feet corroborated wife. decedent’s She there is a 'embankment. high, approaching northerly on stated effect the the which is that side of crossing right way. of a view of the The base stretch down of the the curve is be had at a 5 feet south between embankment is some the track, ex- 40 and 50 feet from the rail of the track which but that of the south crossing westerly a traveler nearer the have some track would tends from the complete straight straight a the view of the stretch feet in a line. At right train, way only “bumper of of when collision the time of the up late, the would be about even with about an hour was which was car, approximately rails.” a she said there would east right complete of not be a of view the miles hour. The train consisted an way passenger portion northward a the motor unless of of Diesel car with baggage car extended over the tes- in the rear. rail. This car seats timony was de- substantiated to some following points the evi- As to the gree by engi- appellant’s witness, the conflicting: engineer was dence neer, township who testified the constantly that he blew the whistle said road “Comes out of hill the onto 1,600 point approximately from a disputed by the railroad.” timony It was tes- crossing. sup- was west behalf of the ef- employee, ported one railroad fect that feet of the south rail within 7 disinterested witnesses testified two visible, of some the track was did not blow from the the whistle photograph the taken from crossing Henery Thompson to the cross- township of road. The center ing away. mile rail- of a One some % overhang of the was shown to be employee said that the bell 2y2 feet. ringing intersection, but the en- at the ap- At the of conclusion the evidence ring- gineer he not admitted that pellant moved for a directed verdict ringing the bell. The the bell denied. After verdict and which was sounding of the whistle are re- and quired ap- judgment plaintiff, in favor of at such under Ohio pellant moved for notwith- statute, Section 8853 Code General standing verdict, or alterna- Ohio, in effect time of the acci- at the trial, for new which was de- also tive has This section been re-enacted dent. is The refusal of these motions nied. Code, Revised in Section 4955.32 Ohio ap- question presented in the sole 1, 1953, October with certain effective peal. changes not material here. controlling testimony law, There was to the effect that Under Ohio embankment, here, applies mo due to the was a the usual rule that a slope, impossible it was to see down 45° tion directed verdict amounts to until a facts the track car was so of all the which the evi near admission danger. Moreover, prove. that it was at a tends to track dence strong admittedly surveyor, was shown is to be construed most It evidence against qualified, ly party who an automobile made in favor the made, whom fr.om Ers detailed observations the distance the motion Wilkeson v. Son, Inc., 218, 61 down the track from visible certain kine & approaching points track from O.Jur. Sections Lodge, south, that, car also when the was within 182 and 183. See Hamden Negligence Ohio Fuel etc. v. Gas decedent is gov presumed. Ohio, The same rule Also in while judg syllabus disposition Supreme of motions for of Detroit, erns decision Court Every non obstante veredicto. such as ment Toledo & Ironton R. presumption law, reasonable and fair con Co. v. states the Supreme Rule VI of structive intendment will made to the Rules of the pleading Ohio; Richardson, Court of sustain the after verdict. 23 Wrede v. Johnson, Ohio O.Jur. Nott v. Ohio 77 *4 opinion Shauck; St. State Automobile Mutual In Chief Justice Haas Robinette, State, Ohio App. 1, 158, surance Co. v. 103 8, 47 Ohio 132 St. N.E. 22, 1164, 189 17 N.E. 857. A.L.R. it does state the law every for somewhat similar case. The Appellant’s principal reliance is on principles and rules of law stated in the Supreme the decision of the Court of syllabus interpreted must be ref with Detroit, Ohio in Toledo & R. Ironton case, erence to the facts of 11 O.Jur. 493, 114 Ohio 151 N.E. 798, 145, Section Note 20 and cases cit 714, in which that court held that under Baillie, ed. Baltimore & Ohio R. Co. undisputed evidence the defendant’s 567, syllabus 112 2, 148 N.E. motion to direct in a verdict its favor opinion 233. Also the of the must court granted, holding should have been syllabus: in the be read in connection with the facts Cleveland, Cincinnati, disclosed. Chi duty “It is the of a driver of a cago Ry. Bros., & St. Louis v.Co. Mills upon public highway vehicle when 173, 178, 101 Ohio St. 128 N.E. 81. The approaching grade crossing of a Poage, 72, court in In re 87 Ohio St. steam railroad to both and look 125, 128, syllabus held that the approaching listen for trains and to in a case relied on “states the law of Ohio place do so at time such and in and with reference to the facts such manner as will make look- predicated” commented, it and also listening effective.” possible “it is not court to com prehend every syllabus many in This case all the been has followed in various phases may Ohio Detroit, facts arise in decisions and also other in this in court litigations touching Toledo & Ironton similar transac Railroad Co. Cir., Yeley, 6 Eagle, tions.” In Miller v. 96 Ohio St. 106, 110, 23, Supreme question presented is whether the Court of apply Ohio refused to quoted syllabus requires reversal of the syllabus ruling validity of a law judgment rendered on the instant rec- relating jury to trial in the court ord. The rule of the Rohrs case is not pleas relating common jury to a law to Lade, Cir., an absolute. Erie R. v.Co. municipal trial syllabus courts. The 948, required F.2d 951. We are being is not to be read as broader than here to jury assume that the found that warrant, the facts of the case 11 O. decedent, neg- not shown to have been syllabus Jur. 798. The case, therefore, in the Rohrs ligent, had his vision cut off so that he necessarily is not compelled rely hearing. He covering construed as this approaching was struck record. For purposes appeal which in of this violation we of state are law com failed to give signals. pelled strong audible to view As a the evidence matter most guilty having ly law appellee. was decedent favor of failed So considered at to look and listen at a time when feet inches from posi the track in a looking listening danger would have been tion of extreme for an automo simplest bile, effective ? Reduced to its a clear view existed for some 600 this is the terms contention only feet. At 4 the track and we think it cannot be sustained. feet of the rail were visible. Co., vania 117 Ohio St. clear Railroad had a case the decedent Rohrs matter N.E. “it is not as 243 feet 158 least for at view of ab driver’s] of law his [an from the railroad duty stop engine unqualified be case solute Rohrs track. The goes upon track freight or 6 fore he such at 5 was a local looking listening discloses 35 miles unless of 30 to miles an hour instead moving presence Con train.” per of a can the the hour as here. Neither strongly struing Pennsylvania syllabus Rd. the facts herein most in Patton v. majority appellee, of the in favor of jury en case, un court concludes that under the cover for there the accident was disputed to infer at a titled decedent facts the limits view caused a train outside a clear of the feet south track violating engine headlight the statute vision decedent's warning. jury here could as to audible from the tracks and at 40 feet *5 might reasonably Detroit, different To have drawn have seen even further. Yeley, contended Co. inferences from those Railroad v. ledo & Ironton stopped appellant directed and the motion for at the truck driver properly v. Childe point safety looked denied. stated that he verdict Co., Railway 80 Ohio point train. for the Cincinnati Street and listened at that 128, appears App. the same N.E.2d To here. 436. evidence No such looking listening Pekin are Tennant & must effect v. Peoria rule that Railway Co., 29, point nec effective 64 S. it is Union 321 U.S. where Highfill requires 409, 520; essary implication such a that v. Louis Ct. 88 L.Ed. Cir., Co., far track but shall exist near the ville & Nashville Railroad 874; enough away Rail that Ellis v. Union Pacific so safety. may stop Co., 649, 598, Rohrs 67 S.Ct. driver U.S. require Yeley also 572. case and the case L.Ed. implication able to the motorist be error this record no reversible Under rely upon vision. denying motion was committed in verdict, for directed the motion the contention Here it was notwithstanding verdict, judgment safe no there was alternative motion for new trial. ty immediately from of the track required judgment precaution un the visual Court the District is affirmed. case could be effective. the Rohrs der introduced evidence was Substantial MILLER, Cir- support To drive SHACKELFORD contention. of this Judge (dissenting). cuit en a Diesel 2 feet of car within one’s overhang gine is estimated at 2 opinion whose I am of the that the place driver in a feet would authority of 2y% should be reversed on the peril. To construe of extreme situation Detroit, I. R. v. T. & Co. in such an absolute “effective” 493, 714; Pennsyl the word any re motorist Rusynik, bar would sense R. Co. 117 Ohio vania any covery case where car was 56 A.L.R. Pennsylvania Moses, even R. 125 Ohio at a struck exercising Lang though care. he was due N.E. See v. Penn App. general sylvania ap R. law of Ohio is not the grade crossing T. & I. R. every Detroit Co. plicable acci Cir., Pennsyl- Yeley, F.2d 375. Robinson As stated in dent.