Plough v. Baltimore & OR Co.
| Decision Date | 14 February 1949 |
| Docket Number | No. 145-148,Docket 21197-21200.,145-148 |
| Citation | 172 F.2d 396 |
| Parties | PLOUGH v. BALTIMORE & O. R. CO., and three other cases. |
| Court | U.S. Court of Appeals — Second Circuit |
James O. Moore, Jr., Wm. J. Brock and Edward H. Kavinoky, all of Buffalo, N. Y., for plaintiffs.
Strang, Bodine, Wright & Combs and Ellsworth VanGraafeiland, all of Rochester, N. Y., for defendant.
Before L. HAND, Chief Judge, and SWAN and CHASE, Circuit Judges.
These appeals are from judgments for the plaintiffs in each of four suits brought to recover damages, in two of the actions for death and in the other two for personal injuries, resulting from a collision between a train and a truck where a highway crosses appellant's railroad track at grade at a place known as Murphy's Crossing in Cattaraugus County, New York. At a former trial, judgments on verdicts were entered for the defendant. We reversed those judgments on grounds stated in the opinion in Plough v. Baltimore & O. R. Co., 164 F.2d 254, with which familiarity will be assumed.
The appellant now relies principally upon two claimed errors, one in the consolidation of the actions for trial after the remand and the other in the charge of the court to the effect that the railroad would be guilty of negligence if the jury found that it ran its train at an excessive and dangerous speed as it approached and crossed the highway.
The first of these contentions is apparently due to a misapprehension of the real reason for the previous reversal. The objection to the consolidation of the four cases for trial seems to have been prompted by the thought that, if neither Plough nor Van Slyke were given the status of a plaintiff in addition to that of a witness in a case being tried, the evidence of their employer's interest in the result of the trial, though not otherwise relevant, would be admissible. But our reasons given in the previous opinion for the exclusion of such emotionally prejudicial evidence, when a basis for such bias as a direct individual interest in the result of the trial could create had already been made apparent, did not rest upon the manner in which the cases were tried. The fact that the cases were before tried together merely did away with the need to prove the interest. At the time when witnesses had actions pending for trial against this defendant in which they were interested as parties and in which their rights depended upon the evidence of what occurred at or about the time of this accident, their interest to color their testimony in their own favor would be the same. Proof of their interest in such pending cases would be enough. It would therefore make no difference as to the admissibility of the offered evidence whether their causes were tried simultaneously with the others or were tried later and so the consolidation of the actions for trial was not an abuse of discretion.
However unfortunate it may be to have repeated trials in these cases, we see no escape from another in view of the charge here given. Under the law of New York which is controlling under 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, it is clear there are no restrictions upon the rate of speed at which a railroad may run its trains over a highway crossing in the open country without being guilty of negligence if reasonable signals are given. Warner v. New York Cent. R. Co., 44 N.Y. 465; Hunt v. Fitchburg R. Co., 22 App.Div. 212, 47 N.Y.S. 1034; McKelvey v. Delaware, L. & W. R. Co., 253 App.Div. 109, 300 N.Y.S. 1263. Yet the court did not make this clear in the charge.
It was charged correctly that the railroad had the paramount right of way where its track crossed the highway at a grade crossing but that this did not absolve the railroad from using "reasonable care and caution dictated by the circumstances" in giving an adequate and timely signal of the approach of its trains. Also that no particular kind of a signal was fixed by law and that failure to give an adequate and timely signal "would amount to negligence on the part of the railroad."
It was then charged, however, that the "other question relating to the alleged negligence upon the part of the railroad was with reference to the speed at which the train approached this crossing," and, after it was pointed out that compliance with the rules of the railroad was "not the test of whether the railroad was negligent in regard to speed," the jury was told that, "The test here again in regard to whether the speed of this train amounted to negligence on the part of the railroad is whether the operation of the train under these circumstances was reasonable and whether it amounted to the exercise of reasonable care and caution under all the circumstances." And...
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United States v. Fairley
...up on some of the errors in the instruction that went unnoticed by counsel and the court. Cf. Plough v. Baltimore & Ohio R. Co. , 172 F.2d 396, 399 (2d. Cir. 1949) (L. Hand, C.J., dissenting) ("It is the office of special verdicts to avoid the effects of misdirections by the judge. They are......
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Nagler v. Admiral Corporation
...scope is shown by cases such as Gillette Motor Transport v. Northern Oklahoma Butane Co., 10 Cir., 179 F.2d 711; Plough v. Baltimore & O. R. Co., 2 Cir., 172 F.2d 396, certiorari denied 337 U.S. 940, 69 S. Ct. 1518, 93 L.Ed. 1745; McAfoos v. Canadian Pac. Steamships, Ltd., 2 Cir., 243 F.2d ......
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Woodington v. Pennsylvania Railroad Company
...would train speed and range of the train operator's vision be proper matters for the consideration of the jury. See Plough v. Baltimore & O. R. Co., 2 Cir., 172 F.2d 396, certiorari denied 337 U.S. 940, 69 S.Ct. 1518, 93 L.Ed. 1745. But the state of the evidence made rather likely a conclus......