Delaware & Hudson Co. v. Nahas, 3386.

• Citation: 14 F.2d 56
• Decision Date: 26 August 1926
• Docket Number: No. 3386.,3386.
• Parties: DELAWARE & HUDSON CO. v. NAHAS.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

14 F.2d 56 (1926)

DELAWARE & HUDSON CO. v. NAHAS.

No. 3386.

Circuit Court of Appeals, Third Circuit.

July 15, 1926.

Rehearing Denied August 26, 1926.

John Lewis Evans, of Philadelphia, Pa., and Paul Bedford, of Wilkes-Barre, Pa., for plaintiff in error.

Harry A. Mackey and George C. Klauder, both of Philadelphia, Pa., and Henry Houck, of Shenandoah, Pa., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

Speaking of the parties as they stand on the record, the plaintiff brought this action in the District Court of the United States for the Eastern District of Pennsylvania to recover damages from the defendant for personal injuries he had sustained at a grade-crossing on the line of the defendant's railroad extending from Albany to Binghampton in the State of New York. The plaintiff had a verdict. To the judgment that followed, the defendant has directed this writ, charging many errors in the trial and raising for review many questions, the main one being whether, on a motion for a directed verdict, the court erred in refusing to hold, as matter of law, that the plaintiff was guilty of contributory negligence.

The answer to this question must be found by a process somewhat unusual, for, aside from considering the facts, we must determine what is the applicable law. The accident happened in the State of New York. If a tort was involved, it was committed in New York. Obviously, therefore, the plaintiff's right of action and the defendant's liability depend on the law of that state, and to invoke the law of that state — distant from the trial forum — it must be proved as a fact. This was done. When proved, that law governed the case. Conceding this, the defendant, however, urged that: "The presumption is that the law of a foreign state is the same as (that of) the State of Pennsylvania and the Pennsylvania Courts will apply their own law unless the law of a foreign state is proved to be different." The defendant then maintained that the law of Pennsylvania, with one exception not here involved, is the same as that of New York, and proceeded to argue the case mainly, and insistently, on Pennsylvania law as announced by Pennsylvania courts in many cases. In order to clear this phase of the discussion, we shall merely say that the case at bar concerns a New York tort, not a Pennsylvania tort; that it was tried not in a Pennsylvania court but in a federal court; that when, as here, a case is one where state law, not federal law, is to be followed and the law of the state has been proved, that law governs the case. Cases from courts of another state bearing on like law may be persuasive; they are not authoritative.

The law of New York applicable to this case, as put in evidence, may be summarized as follows:

The law of New York imposes on a person approaching or crossing a railroad track an obligation to exercise reasonable care in view of all the circumstances and recognizes that such care varies with the circumstances. In this it follows the common law. One approaching or crossing a railroad track is not bound to the greatest diligence which he can exercise to avoid danger but he is bound to exercise care commensurate with the danger, such as a prudent man approaching such a place would ordinarily exercise for the protection of his life. Kellogg v. N. Y. C. & H. R. R. Co., 79 N. Y. 72. In exercising care he must employ his senses of seeing and hearing. Failing to do that, he is negligent as matter of law. Dolan v. D. & H. Canal Co., 71 N. Y. 285; Totten v. Phipps, 52 N. Y. 354. He must look in the direction the track runs even though this involve turning and looking directly backward. Chamberlain v. Lehigh Valley R. Co., 205 App. Div. 391, 199 N. Y. S. 708; 238 N. Y. 233, 144 N. E. 512. He must look where he can see and must listen where, by listening, he can hear. Cassidy v. Fonda, 200 App. Div. 241, 193 N. Y. S. 275; Id., 234 N. Y. 599, 138 N. E. 462; Barry v. Rutland R., 203 App. Div. 287, 197 N. Y. S. 432; Id., 236 N. Y. 549, 142 N. E. 279; Fejdowski v. D. & H. Canal Co., 168 N. Y. 500, 61 N. E. 888. It is, however, not sufficient that the plaintiff looked but did not see. "Such a statement is incredible as a matter of law." Matter of Harriot, 145 N. Y. 540, 40 N. E. 246. While under general rule it is the province of the jury to determine whether such care has been exercised, it is also a rule that where there is a clear view of the approaching train and where the plaintiff either looked and did not see, or failed to look, he is, as matter of law, guilty of contributory negligence and not entitled to have that question go to the jury. Dolfini v. Erie R. Co., 178 N. Y. 1, 70 N. E. 68; Hagglund v. Erie R. Co., 210 N. Y. 46, 103 N. E. 770; LeGoy v. Railroad, 231 N. Y. 191, 131 N. E. 886. The statutory law (Laws of 1919, Chapter 438) differs from the general law in the one respect that a driver must "slow down" his vehicle at three hundred feet from a crossing. To what speed, it does not state. He is not bound as matter of law to stop before crossing. Kellogg v. N. Y. C. & H. R. R. Co., 79 N. Y. 72; Horton v. N. Y. C. R. R. Co., 237 N. Y. 38, 142 N. E. 345.

And finally, in actions for injury as distinguished from actions for death, contributory negligence is not a defense to be raised by the defendant. Quite opposed to general rule, the plaintiff must affirmatively show his freedom from contributory negligence. Chamberlain v. Lehigh Valley R. Co., 238 N. Y. 233, 144 N. E. 512.

Coming to the railroads, the Penal Law of New York (Consol. Laws, c. 40), by Section 1985, prescribes that an "engineer, driving a locomotive on any railroad in this state, who fails to ring the bell, or sound the whistle, * * * at least 80 rods from any place where such railway crosses a traveled road * * * on the same level * * * or fails to continue the ringing of such bell or sounding such whistle at intervals, until such locomotive * * * shall have completely crossed such road * * * is guilty of a misdemeanor." This statute, being penal in character, does not impose on railroads the duty of giving the prescribed warning. Vandewater v. New York & New England R. Co., 135 N. Y. 583, 32 N. E. 636, 18 L. R. A. 771. A railroad's duty is that imposed by general law, namely, "to warn persons who may be passing, whether on foot or in team, of the approach of trains." Dyer v. Erie Co., 71 N. Y. 228, 230. In other words, a railroad is bound to give some notice or warning of a train approaching a crossing and what is sufficient warning is a question of fact for the jury. The law does not lay down any criterion other than that of due care in operating the train in all the circumstances. Failure to ring the bell or blow the whistle may, however, be evidence of negligence. Vandewater v. New York & New England R. Co., 135 N. Y. 583, 32 N. E. 636, 18 L. R. A. 771.

On the issue of the defendant's negligence it is conceded that the testimony, though in sharp conflict, was sufficient to justify submission to the jury. On the issue of the plaintiff's contributory negligence the evidence of physical facts was not disputed. This issue, when raised on the motion for a directed verdict, turned on the inferences properly to be drawn by the court, as matters of law, from the plaintiff's conduct in connection with the physical conditions.

Shortly stated, the facts, either not disputed or established by the verdict, are these:

The defendant's two-track railroad, at the point in question, ran northeast and southwest and was crossed at grade by a state highway running almost exactly east and west — forming with the tracks on the right an acute angle of 40 degrees. Here was a dangerous X crossing, familiar to motorists, with the narrow angle on the side whence the train came. The tracks ran straight for a distance of 3,385 feet, with semiphores at 1,174 feet and a whistling post at 1,450 feet north of the crossing. View from the highway up the tracks was obstructed at different places by buildings and trees, being completely obstructed at 494 feet from the crossing, still obstructed at 302 feet, somewhat obstructed at 202 feet. The view progressively extended as the obstructions progressively decreased at 179, 106, 76, 54 feet and cleared at 29 feet from the crossing permitting a view up the tracks at least beyond the semiphores. The crossing was rough and was reached from the highway on an upgrade.

The plaintiff, seated with a companion in a four-man cab of a left-hand drive truck, 28 feet long and 6 feet wide, weighing five tons and carrying a five-ton load, was driving on the highway toward the crossing. He was a stranger to the place. Observing a railroad sign 300 feet from the tracks, he slowed down to 5 miles an hour and, proceeding still more slowly, stopped with the front end of the truck 6 feet from the nearest rail of the first track. From his position in the cab 7 feet back from the front, or 13 feet from the nearest rail, he listened and heard nothing. He looked to the left along the rail side of the obtuse angle, which from his left-hand position in the cab was easy, and saw nothing. He looked to the right backwardly along the rail side of the acute angle, which from his position was difficult, stating that his view was clear for about 500 feet, beyond which point it was obstructed by a tree later shown to be 300 feet distant and 8 feet outside the right of way, and saw nothing. Whether he first looked to the left or to the right does not appear. It does appear that he looked in both directions. Seeing no train coming from either direction, he put the truck in low gear and moved across the tracks at about 2 miles an hour, estimating that from the time he started until he was hit was about 2 minutes. When he came to the first rail of the second track he saw the train coming from the north at a speed later estimated at 45 miles an hour. Quickly shifting to second gear he increased the...