Erie R. Co. v. Stewart

• Decision Date: 13 May 1930
• Docket Number: No. 5350.,5350.
• Citation: 40 F.2d 855
• Parties: ERIE R. CO. v. STEWART.
• Court: U.S. Court of Appeals — Sixth Circuit

40 F.2d 855 (1930)

ERIE R. CO. v. STEWART.

No. 5350.

Circuit Court of Appeals, Sixth Circuit.

May 13, 1930.

E. A. Foote and B. D. Holt, both of Cleveland, Ohio (Cook, McGowan, Foote, Bushnell & Burgess, of Cleveland, Ohio, on the brief), for appellant.

William R. Day, of Cleveland, Ohio (Day & Day, of Cleveland, Ohio, John A. Elden, of Cleveland, Ohio, on the brief), for appellee.

Before DENISON and HICKENLOOPER, Circuit Judges, and TUTTLE, District Judge.

HICKENLOOPER, Circuit Judge.

Stewart, plaintiff below, was a passenger in an automobile truck, sitting on the front seat to the right of the driver, a fellow employee of the East Ohio Gas Company. He recovered a judgment in the District Court for injuries received when the truck was struck by one of the defendant's trains at the 123d street crossing in the city of Cleveland. Defendant maintained a watchman at this crossing, which was admittedly heavily traveled, but the watchman was either within the shanty or just outside of it as the train approached, and he gave no warning until too late to avoid the accident. Two alleged errors are relied upon. The first to be considered is that the plaintiff, even though a passenger, was shown to be guilty of contributory negligence as a matter of law.

The doctrine of imputed negligence does not prevail in Ohio (Street Ry. Co. v. Eadie, 43 Ohio St. 91, 1 N. E. 519, 54 Am. Rep. 802), and no facts were shown to bring the case within the doctrine of New York C. & St. L. R. R. Co. v. Kistler, 66 Ohio St. 326, 64 N. E. 130, and Erie R. Co. v. Hurlburt, 221 F. 907 (C. C. A. 6), as showing assumption by the plaintiff of a share in the responsibility for vigilance. Conceding that the plaintiff was under obligation to exercise such care as a reasonably prudent person would exercise under the same or similar circumstances, this court has so frequently held that there is a qualified assurance of safety in the absence of the flagman or the failure to lower the gates that the citation of authority would seem unnecessary. However, see Zimmerman v. Pennsylvania R. Co. (C. C. A.) 252 F. 571; Wabash R. Co. v. Glass (C. C. A.) 32 F.(2d) 697; Leuthold v. Pennsylvania R. Co. (C. C. A.) 33 F.(2d) 758. The question of the contributory negligence of the plaintiff was properly left to the determination of the jury.

The second contention of appellant presents the question whether the court erred in charging the jury that the absence of the watchman, where one had been maintained by the defendant company at a highway crossing over a long period of time to the knowledge of the plaintiff, would constitute negligence as a matter of law. In the present case it is conceded that the employment of the watchman by the defendant was voluntary upon its part, there being no statute or ordinance requiring the same, and that plaintiff had knowledge of this practice and relied upon the absence of the watchman as an assurance of safety and implied invitation to cross. We are not now concerned with the extent of the duty owing to one who had no notice of the prior practice, nor, in this aspect of the case, with the question of contributory negligence and the extent to which the plaintiff was relieved from the obligation of vigilance by the absence of the watchman. The question is simply whether there was any positive duty owing to the plaintiff in respect to the maintenance of such watchman, and whether a breach of such duty is so conclusively shown as to justify a peremptory charge of negligence. The question whether such negligence was the proximate cause of the injury was properly submitted to the jury.

Where the employment of a watchman or other precaution is required by statute, existence of an absolute duty to the plaintiff is conclusively shown, and failure to observe the statutory requirement is negligence per se. Hover v. Denver & R. G. W. R. Co., 17 F.(2d) 881, 883 (C. C. A. 8); C. H. & D. R. Co. v. Van Horne, 69 F. 139 (C. C. A. 6). The same doctrine applies in Ohio where the watchman is required by ordinance. Schell v. Du Bois, 94 Ohio St. 93, 113 N. E. 664, L. R. A. 1917A, 710. Conversely, where there is no duty prescribed by statute or ordinance, it is usually a question for the jury whether the circumstances made the employment of a watchman necessary in the exercise of due care. Rothe v. Pennsylvania Co., 195 F. 21 (C. C. A. 6). Where the voluntary employment of a watchman was unknown to the traveler upon the highway, the mere absence of such watchman could probably not be considered as negligence toward him as a matter of law, for in such case there is neither an established duty positively owing to such traveler as a member of the general public, nor had he been led into reliance upon the custom. The question would remain simply whether the circumstances demanded such employment. But where the practice is known to the traveler upon the highway, and such traveler has been educated into reliance upon it, some positive duty must rest upon the railway with reference thereto. The elements of invitation and assurance of safety exist in this connection no less than in connection with contributory negligence. The company has established for itself a standard of due care while operating its trains across the highway, and, having led the traveler into reliance upon such standard, it should not be permitted thereafter to say that no duty required, arose from or attached to these precautions.

This duty has been recognized as not only actual and positive, but as absolute, in the sense that the practice may not be discontinued without exercising reasonable care to give warning of such discontinuance, although the company may thereafter do all that would otherwise be reasonably necessary. American Law Institute, Restatement of the Law of Torts, Tentative Draft No. 4, Comment f to § 183. Conceding for the purposes of this opinion that, in cases where a watchman is voluntarily employed by the railway in an abundance of precaution, the duty is not absolute, in the same sense as where it is imposed by s...