Bash v. Baltimore & OR Co.

• Decision Date: 03 February 1939
• Docket Number: No. 6713.,6713.
• Court: U.S. Court of Appeals — Third Circuit
• Parties: BASH v. BALTIMORE & O. R. CO.

102 F.2d 48 (1939)

BASH v. BALTIMORE & O. R. CO.

No. 6713.

Circuit Court of Appeals, Third Circuit.

February 3, 1939.

Wm. M. Kahanowitz, of Greensburg, Pa., and Clarence B. Nixon, Harry J. Nesbit, and John B. Gordon, all of Pittsburgh, Pa., for appellant.

E. V. Buckley and Pugliese & Evans, all of Pittsburgh, Pa., for appellee.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

This appeal presents the pathetic pattern of the grade crossing accident. A family's breadwinner going about his daily work (in this instance trucking coal) is snuffed out by the operation of a transportation system essential to his welfare (it carried the coal) and that of his fellow citizens. More than forty years ago, the Pennsylvania Supreme Court formulated the problem in these rather graphic phrases:

"The traveler on the public road, going at the rate of four or five miles an hour, cannot be seriously inconvenienced by the delay of a few seconds near the crossing. Therefore, the law holds that, while both have a right to the crossing, the right of the single traveler must be subordinate in this particular to that of the train. As both cannot have this limited space at the same time, he must wait until the train passes. Further, the law peremptorily enjoins upon each ordinary care in the enjoyment of the right. The train must signal to the traveler its approach to the crossing by the steam whistle. The traveler, as he hears it, must stop, look, and listen. The instinct of self-preservation should impel both to the exercise of this degree of care, but, aside from this, `the law commands it.' Naturally, then, we would expect grade-crossing accidents to be of rare occurrence; but, contrary to our expectation, the records of the courts of the commonwealth demonstrate they are very frequent. We are driven, then, to the conclusion that the commonwealth, the power which by law authorizes the grade crossing, is negligent in her concern for the lives and property of her citizens. No experienced and humane railroad officer doubts this negligence. Every intelligent citizen admits and condemns it. Still this constant peril to life and limb continues to exist and increase. Each year a growing population importunately demands more railways and more public roads to meet the requirements of travel and traffic. Their construction is followed by more grade crossings; these, by more accidents; and these, by costly and vexatious lawsuits. While we have no desire to touch matters which the constitution confides to another branch of the government, judicial observation of an evil without adequate remedy, except by wholesome legislation, compels us to notice it." Newhard v. Pennsylvania R. Co., 153 Pa. 417, 421, 26 A. 105, 106, 19 L.R.A. 563.

Since then the "greatest good" has shifted its emphasis and the "greatest number", i. e., the users of the highways, have insisted upon the protection and elimination of crossings at grade (For Fewer and Safer Grade Crossings, The American City, March, 1929, p. 104; Stop, Look, and Listen!, The Forum and Century, October 1934, p. 239).

It will be noticed that we have quoted from a Pennsylvania case. That leads us to call attention to the rule of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. This abandonment of Federal general law has occasioned some controversy among the theorists (Shulman, The Demise of Swift v. Tyson, 47 Yale L.J. 1336; McCormick and Hewins, The Collapse of "General" Law in the Federal Courts, 33 Ill.L.Rev. 126; Schmidt, Substantive Law Applied by Federal Courts — Effect of Erie R. Co. v. Tompkins, 16 Tex. L.Rev. 512; Schweppe, What Has Happened to Federal Jurisprudence?, 24 A.B. A.J. 421; Jackson, The Rise and Fall of Swift v. Tyson, 24 A.B.A.J. 609; Powell, The Constitutional Convention and Swift v. Tyson, 24 A.B.A.J. 862; Knightlinger, Swift v. Tyson Overruled, 13 Ind.L.J. 564; Fraenkel, Constitutional Issues in the Supreme Court 1937 Term, 87 U.Pa.L.R. 50; Stimson, Swift v. Tyson — What Remains?, Cornell Law Quarterly, December 1938, 54). Ours is, of course, not to reason why. The same is true of the bar and we speak of it here because counsel for the appellant relies on one of our own cases. Perucca v. Baltimore & Ohio R. Co., 3 Cir., 35 F.2d 113.

The rulings of the courts have been shaped to supplement this mechanical avoidance of accident. The writer of this opinion happened to be on the bench of the District Court at the time of the pronouncement of the dictum in the case of Baltimore & Ohio R. Co. v. Goodman, 275 U.S. 66, 70, 48 S.Ct. 24, 72 L.Ed. 167, 56 A.L.R. 645 (opinion by Holmes, J., in the early years of whose distinguished life, the horse and buggy were most certainly a feature). He remembers the attendant legal excitement and the rash of articles in law reviews. The best of them are collected in note 1 of the discussion in 15 Cornell Law Quarterly 136. Whether these judicial shapings have accomplished their purpose may be debatable. For instance, the learned writer of the article above cited and the former and learned Chief Justice of Pennsylvania are not in complete agreement.

"It is not unreasonable to require, as the Goodman case does, that at an obstructed crossing a motorist come to a full stop, and if necessary get out of his car to determine the approach of danger. Careful motorists would tend to do so anyway; knowledge that the courts require this caution is the catalytic agent making their conduct conform to the rule. But when we set up requirements that are too stringent, and out of touch with highway practices, common experience would indicate that motorists will refuse to obey these strictures. Pennsylvania perhaps presents an example of standards that are too exacting." Glushien, Torts: Contributory negligence: Duty of traveler crossing railroad tracks, (Notes and Comments) 15 Cornell Law Quarterly 136, 139.

"There is much more room to quarrel with the `stop, look and listen' rule, itself, as an encroachment on the rights of the jury, than with the rule in the Carroll Case; but the former is now so ingrained in our law that it has become a rule of thumb, and its discussion at this time is of no practical use. It can, however, be said in its favor that the `stop, look and listen' rule has filled a real purpose and saved many lives, which probably accounts for its continued existence; and, as stated before, the rule in the Carroll Case is but a logical application thereof." Trial by Jury, 2d Ed., von Moschzisker, Sec. 321.

The solution may belong in the legislative department. Minn.Stat.Mason's 1927, c. 28, § 4743-1 et seq. Cf. Matson, Experience with the Minnesota Grade Crossing Stop Law, 36 Am.City 478.

Furthermore the greater the departure from the general to the particular standard, the greater the complexity of application for the trial court and the greater the opportunity for appealable error. According to Professors Morgan and Farley, we are unlikely to have the compensation of understanding and acceptance by a jury of the guidance offered.

"No extended experience at the bar or upon the trial bench is required to produce a vivid realization that only in the exceptional case is the jury decisively influenced by the judge's instructions." Morgan, Instructing the Jury Upon Presumptions and Burden of Proof, 47 Harvard Law Review 59.

"The original purpose of giving instructions for the actual enlightenment of the jury, to assist them in applying the law to the facts, has become inconsequential. The priests, however, are not fooled by the system evolved. The lawyers and judges are perfectly aware that juries pay scant attention to the type of instructions commonly given them on the law applicable to the facts, and that as a rule they are incapable of the fine discrimination such an application requires. But it is impressive to the public and it clothes the jurors with a sanctimonious mantle of enlightenment which gives them a sense of peace and accord with authority. Trial lawyers may consume a great deal of time on instructions, but little of it is wasted on attempting to force the jury's attention to them. It is usually as futile as reading a decision of the supreme court to a justice of the peace or arguing the Constitution with a policeman." Farley, Instructions to Juries — Their Role in the Judicial Process, 42 Yale Law Journal 194, 213-214.

In the case at bar we do not reach the legal intricacies of the "stop, look, and listen" rule. Another and simpler principle halts us on its threshold. This is the so-called Incontrovertible Physical Facts Rule (10 R.C.L. sec. 198, p. 1009; Words and Phrases, Fourth Series, Incontrovertible, p. 314).

Truth is as much of the essence of the court as of the laboratory. The distillation of that essence is from an uncertain, because human, rather than from a certain, because chemical, element. To put it another way, the human and the mathematical equation are not the same. A principal test tube of the courts carries the legal encyclical — credibility of witnesses.

"The simple believeth every word; but the prudent man looketh well to his going."

Prov. xix. 15.

"It is a wild conceit that any court of justice is bound...