Zimmerman v. Pennsylvania Co.

• Decision Date: 03 August 1918
• Docket Number: 3160.
• Parties: ZIMMERMAN v. PENNSYLVANIA CO.
• Court: U.S. Court of Appeals — Sixth Circuit

252 F. 571

ZIMMERMAN v. PENNSYLVANIA CO.

No. 3160.

United States Court of Appeals, Sixth Circuit.

August 3, 1918

C. W Dille, of Cleveland, Ohio, and Anderson, Mathews & Wall, of Youngstown, Ohio, for plaintiff in error.

Hollis E. Grosshans and Harrington, De Ford, Heim & Osborne, all of Youngstown, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

Plaintiff as administratrix of the estate of the late John F Zimmerman, brings this action to recover damages for the wrongful death of the decedent. The defendant maintains and operates a railroad in the city of Alliance, and the decedent met his death May 7, 1915, at the crossing of the railroad over Park avenue in that city. Park avenue runs north and south and the railroad east and west. Decedent was driving north on Park avenue in an automobile, and when his machine reached the south rail of defendant's southerly track it was struck and he was killed by the locomotive of one of defendant's passenger trains bound east. Defendant maintained a shelter for a watchman in or near Park avenue adjacent to the north side of its northerly track, and the watchman was seen in the shanty, as it is called, shortly before the collision. Decedent was driving his machine at a moderate speed, estimated at the rate of 7 or 8 miles an hour, and this rate was materially reduced as the machine approached the south rail. He was looking directly north, and might well have had the watchman in view when nearing the point of danger, though it is not shown that the watchman was on duty at the moment the collision occurred.

At the close of the plaintiff's testimony defendant moved for a directed verdict, and the motion was granted. We agree with the learned trial judge that the evidence tended to show negligence on the part of the defendant, in that neither the whistle nor the bell of the locomotive was sounded as the train approached the crossing, and that at the time of the collision the train was running at the rate of 30 miles an hour. The court concluded as matter of law, however, that the decedent was not in the exercise of ordinary care as he approached the crossing. It is true the testimony tends to show that the decedent did not stop his machine, or look to the right or the left, before driving upon the track; but the view in the direction from which the train was coming was obstructed by buildings on the west side of Park avenue to a point within 14 or 15 feet of the southerly track. Considering these obstructions, in connection with the control under which the automobile was being operated,...