44 F. 574 (S.D.Ohio 1890), Griffith v. Baltimore & O.R. Co.

Citation:44 F. 574
Case Date:December 17, 1890
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 574

44 F. 574 (S.D.Ohio 1890)




United States Circuit Court, S.D. Ohio, Eastern Division.

December 17, 1890

Page 575

S. M. Hunter, for plaintiff.

J. H. Collins, for defendant.

SAGE, J., (orally.)

This action is to recover damages against the Baltimore & Ohio Railroad Company for injuries received on the 1st of August, 1888, at Locust Grove crossing, about four and one-half miles south of Newark, by the collision of a train with the horse and buggy in which the plaintiff was then riding with her mother, who was driving. The accident occurred about 12 o'clock at noon of that day. The testimony of the mother is that, between 10 and 11 o'clock, she started with her daughter from their home, 12 miles from Newark, intending to go to that city. They were in a phaeton buggy, the top of which was up, and the side curtains off, so that the view was unobstructed. When they reached 'Hog Run Bridge,' as it was called in the testimony, which is about a quarter of a mile from the crossing, they began, according to her testimony, to watch for the train. She states that they were watching for the noon train. They drove very carefully, according to her evidence. There was no sign of the train. Passing from the bridge, they went up a little hill, where they could see the track, and could have seen the train if it had been there; but they saw no train. Passing on up to the top of the hill, they drove carefully. Saw no sign of the train. At the top they stopped and listened, but heard nothing, and then drove slowly down the hill. She testifies that at the top of the hill they were about 50 yards from the crossing; that it was near train time, or, as she expresses it, 'it was very close.' Must have been 12 o'clock, she testifies, and that the noon train was due at 12. According to this testimony, gentlemen, the mother knew that the time for the approach of the train was at hand. Then, according to her testimony, they went down the hill slowly. On the right-hand side, which was the side from which the train from the south would approach, there is a bank, and a field of growing corn, 10 or 12 feet high, which, she states, shut out any view of the train; that by reason of these obstructions they could not see the track nor an approaching train until, as she expressed it in her testimony, they were within a very short distance

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from the track. You will remember the testimony, gentlemen, indicating, perhaps, as far as where I am sitting to that corner of the window,-- about 40 feet. When the horse's two fore feet were upon the track, they saw the train coming, as she expresses it, 'like lightning,' within a few yards of them. Her daughter threw up her hands and said: 'Oh, ma' and that was all that was said. Instantly the horse was struck in the neck and shoulder, and thrown some 60 feet, the phaeton some 30 feet, the daughter underneath, the mother rendered unconscious. She first regained her consciousness, and then managed to assist her daughter to a house near by. It is admitted that the daughter would testify that she had no recollection whatever of any of the facts that occurred. That is not a remarkable circumstance, gentlemen. It seems to be a merciful dispensation of Providence to paralyze the faculties and the feelings, so that, so far as it has been possible to investigate the matter, the general opinion of those who have given attention to it is that, even in the most dangerous and apparently painful accidents, there may be little actual pain or suffering at the time, but rather an unconsciousness, which renders the sufferer unable, in most instances, to recollect anything that occurred. At all events, it is admitted that this plaintiff would testify that she remembered nothing whatever of the circumstances. The mother testifies that they heard no whistle; that they were listening for it; and that they heard no bell. Now, upon cross-examination, she testified that from the end of the field of growing corn,--that is, from the lower edge of the growing corn,-- to the track, the distance was about equal to that from one corner of the courtroom on the other side of the hall to the corner diagonally opposite,-- I suppose 40 or 50 feet; and one witness (Mr. Holtzberry) testifies for the plaintiff (he was sitting in the smoking-car as the train approached, and the window of the car where he was sitting was up) that he remembers the approach of the train to that crossing on that day; that there was a whistle just when the train crossed Hog Run bridge, (railroad bridge,) and that was all the signal that he heard; that he did not hear the bell ring. There was the testimony of other witnesses that while the train was in rapid motion it would not be possible to hear the ringing of the bell on the train, even in the smoking-car. This witness, however, testified that he put his head out; was going to look to see whether he could see a coal train, which was following the passenger train, coming behind them, with reference to which you have heard the testimony. When he first put his head out, he looked in front, and saw the horse just coming down the steep bank onto the railroad track, and then the collision occurred, and he saw two persons,--one thrown towards the train, and the other towards the side of the hill; that it was about 75 yards from the crossing that he saw what I have stated to you. If that was true, gentlemen, why, it necessarily follows, it seems to me, that those in the buggy could see him,-- that is, could see at least as far back on the train as to the smoking-car,-- for the very obvious reason that if I, sitting here, can see the juror sitting in the corner, he, sitting in the corner, must be able to see me, and therefore,

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according to this testimony, the train was visible to the occupants of the phaeton before the phaeton reached the track. Now, gentlemen, as to the testimony in this case, you are to be the judges. It is my duty to give you such instructions concerning the law as may be necessary for the proper understanding and construction of the testimony. Whatever I may say about the testimony will be only for the purpose of enabling me to make more clearly understood what I have to say about the law, leaving to you to decide, not by what I may say, but by your own recollection, what the facts are.

The ground of recovery in such an action as this must be the negligence of the defendant. That is not to be inferred as matter of course, nor from the mere fact of the occurrence of the accident; in other words, the happening of the event does not raise the presumption of negligence on the part of the defendant. The burden of proof is upon the plaintiff, by which it is meant necessary for the plaintiff to establish, by a fair preponderance of testimony, that the negligence which is required to entitle a recovery occurred. By a preponderance of testimony is not meant, necessarily, by a greater number of witnesses, but that the testimony shall fairly preponderate,-- that is, make the stronger impression upon your minds. For instance, one witness may create a stronger impression upon a jury, and properly so, than half a dozen witnesses testifying to the contrary, because by the manner, candor, and intelligence of a witness his or her testimony may so impress itself upon the jury as to overcome in weight the testimony of half a dozen other witnesses. That is what is meant by a preponderance of evidence,-- that it shall produce a stronger impression. Ordinarily, witnesses being equal in other respects, the number of witnesses would control; but, as I have just stated, it is not necessarily so. Now there are mutual duties attending the approach of a train and the approach of travelers where the railroad crosses the highway at grade. The law requires that the railway company, under such circumstances, shall sound its...

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