168 F. 832 | 6th Cir. | 1909
The defendant in error, plaintiff below, sued to recover damages on account of the death of his intestate, which is alleged to have been caused by his being run over by the defendant’s yard train, in consequence of the catching of his foot in a frog, connected with a switch which was unblocked. Plaintiff’s petition alleged negligence in the operation of the engine, in failing to have a headlight on the engine, and in running the train at an unlawful rate of speed. It also alleged a violation of section 3365 — 18 of the Revised Statutes of Ohio, which requires every railroad operating in that state to “adjust, fill or block, all angles in frogs, switches, and crossings on their roads in all yards, divisional and terminal stations where trains are made up.” All the grounds of negligence except the violation of the statute, referred to were withdrawn by the court from the consideration of the jury. There was a verdict and judgment for the plaintiff, and a denial of motion for new trial.
At the conclusion of the testimony the defendant moved for a peremptory instruction in its favor, upon the ground that plaintiff had failed to prove by a preponderance of the evidence that failure to block the frog was the proximate cause of the accident, and that the plaintiff was shown by the proofs to have been guilty of contributory negligence. Miller, the decedent, was employed by the defendant as night watchman at the crossing of Hamilton street and defendant’s tracks in the city of Toledo. The tracks in this section run in a northerly and
There is evidence tending to support this theory, viz., testimony indicating that immediately before the signal was given Miller was seen coming toward the railroad tracks down an alley between Hamilton street and the next street north, and thus toward the three switches in question; that a little later the signal to the train was given from the west side of the tracks and near the north side of Hamilton street. This testimony, however, was not undisputed. There was testimony to the effect that the signal was not required to be given from the west side of the tracks, but was properly given upon the tracks and at the switch; that the reason assigned for giving the signal upon the westerly side of the tracks, viz., that the signals were given to the engineer, did not apply in this case, from the fact that the engine which pulled the train in question was headed northerly and was thus running backwards, the engineer being thus on the east side; the fireman, whose opportunities for observation were fully as good as those possessed by the engineer, was unable to say that Miller was seen in the alley or that the signal was not given at the switch in question; and the testimony of the engineer was discredited by his testimony immediately following the accident, alleged to be inconsistent with his testimony upon the trial, and by c-ther evidence. There was ample room under the testimony for the
Complaint is made of the court’s refusal to give certain requests presented by defendant, numbered 7 and 16, both directed to Miller’s alleged negligence in crossing the tracks ahead of the train. Kach of these requests contained a definition of proximate cause. Request No. 7 contained the instruction that plaintiff could not recover without proving that defendant’s negligence was the proximate cause of Miller’s death. The court submitted to the jury, under careful instructions, the question of Miller’s contributory negligence, placing sharply before the jury the conflicting claims of the parties.
The jury was told that if Miller, while engaged in the performance of his work, or, having just performed his duty, was leaving the place where he had performed it, and while exercising ordinary care for his own safety, was caught by his foot in an unblocked frog, and in consequence of being thus caught was killed, the plaintiff was entitled to recover; that, on the other hand, if Miller was not himself exercising ordinary care for his own safety, and if failure to exercise such ordinary care contributed to the accident, there could be no recovery; and, specifically, that if Miller was struck and killed while walking along the track, between the rails, no recovery could be had; and, further, upon defendant’s request, that if, after giving the signal, it was Miller’s duty to go to the crossing of Hamilton street, and if he could reach that crossing by walking between the tracks, where he was safe from the approaching train, but if,' instead of doing so, he walked along the track on which the train was running, ahead of the train, such action was the proximate cause of death — in which case, even though Miller’s foot was caught in an unblocked frog, the defendant would not be liable. A further instruction requested by defendant was given, to the effect that if, after giving the signal to the train, Miller, knowing the train was approaching, went upon the track and attempted to run along the track ahead of the train to the crossing of Hamilton street, when he might have gone to the crossing by the side of the track, and in a place where he was safe from the approaching train, and while running along the track caught his foot in an unblocked frog and was hit and run over by the approaching train, then the proximate cause of the death would have been Miller’s own act, and no recovery could be had. No abstract definition of proximate cause was given, nor any instructions aimed directly at Miller’s negligence in crossing the tracks (as alleged) ahead of the approaching train. Request No. 7 contained this definition of proximate cause:
“P>y the term ‘proximate cause’ is meant the first or efficient cause, and if you find from the evidence that there were several causes contributing to Miller's death, then the proximate cause is the cause coming first, which set in motion the other causes producing the accident.”
It is urged that the statute requiring the blocking of frogs relates only to yards “where trains are made up,” and that no proof was presented that the frog in question was in such a yard. Defendant invokes the rule that a statute changing the common, law modifies or abrogates it tio farther than the clear import of its language necessarily requires. Johnson v. Southern Pac. Co., 117 Fed. 462, 54 C. C. A. 508. The obligation imposed by the statute under consideration is limited by express terms to frogs in “yards, divisional and terminal stations where trains are made up,” and it is true that no express testimony was introduced that the switch in question was in such a yard. The evidence, however, afforded by the record was clear and convincing that the place under consideration was a yard of that kind. It is conceded that the place where the injury occurred is but a little way south of the freight station. The map in evidence shows no less than nine or ten switches radiating from the main track within a distance of about three blocks next north of the bridge. The brief of the plaintiff in error states that “Miller was employed by the plaintiff in error as a watchman, switch-man, and bridge tender in its yards at Toledo.” The train in question was a yard train. Four yard trains on an average pass over the spot under consideration every night. The three switches referred to are spoken of in the testimony as “yard switches” and as being in the “lower yards.” These yard trains were for the purpose of or in connection with the making up of trains. The only respect in which the proof can be criticised as lacking is that there is no definite statement that the trains were actually assembled in the immediate strip where the unblocked frog in question was located. It was not necessary that this should be so. The strip in question was clearly part of the yard used for the making up of trains, and so was a yard within the meaning of the statute. It was so clearly part of the yard that had the question of its status been submitted to the jury, and a finding made that it was not a yard where trains were made up, it would have been the duty of the court to set the verdict aside. There was thus no error in assuming that the place where the injury occurred was such a place as covered by the statute. Marquardt v. Ball Engine Co., 122 Fed. 374, 58 C. C. A. 462; Riley v. L. & N. Ry. Co., 133 Fed. 904, 66 C. C. A. 598.
No error was committed in the instruction that- “by a preponderance of proof is meant' that you are persuaded of the soundness of the claim that the plaintiff puts forth more satisfactorily than to the contrary.” This definition is not objectionable from the mere fact that it does not employ the word “weigh”; nor does it contain an implication that the jury were at liberty to be persuaded by argument rather than by proofs. The jury could properly understand the term “persuaded” to mean on-Jy that the proof be more persuasive, more convincing.
In view of the evidence, and the other features of the charge, there was no error in failing to instruct the jury that if Miller, in the exer
Nor was prejudicial error committed in the instruction upon the subject of contributory negligence that:
“Where the negligence of the employed person actually does contribute to the result that happened to him, we cannot stop to measure under the rule of law as it now exists, how great or how little that negligence is comparatively, provided the negligence of the employé was a substantial contribution to the accident.”
The criticism upon this instruction is directed to the word “substantial,” the argument being that any negligence of the decedent, no matter how slight, is sufficient' to defeat the action. The test of contributory negligence is whether the want of care directly and proximately contributes to the injury. Gilbert v. Burlington, C. N. & R. Ry. Co., 128 Fed. 529, 533, 63 C. C. A. 27; Coney Island v. Dennan, 149 Fed. 687, 693, 79 C. C. A. 375. Negligence could scarcely be said to contribute directly and proximately to t'he injury unless it were substantial. However, the expression criticised was used in a preliminary statement of the general principles involved. Rater, the co.urt charged that, if Miller’s “failure to exercise ordinary care for his own safety contributed to the accident resulting in his death,” the plaintiff could not recover. This last instruction was rather more favorable to the defendant than it was entitled to. While the word “substantial” is perhaps not a happy term, no prejudice could have resulted from it's use.
There was no error in refusing to strike out the testimony of the witness Rallis. There was nothing indicating that Miller’s duties had changed since the connection of the witness with the railroad. Moreover, the testimony was not only undisputed, but the same testimony was given by other witnesses conceded to be‘competent.
The court properly declined to give defendant’s proposed instructions relative to the grounds of negligence withdrawn from the consideration of the jury.
The objections that the damages are excessive, and that the verdict is against the law and the evidence, were for the court below to decide upon motion for a new trial, and cannot be considered here.
We find no error in the record, and the judgment of the Circuit Court is affirmed.