Baltimore & OR Co. v. Goodman

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: DONAHUE, MOORMAN, and KNAPPEN, Circuit
• Citation: Baltimore & OR Co. v. Goodman, 10 F.2d 58 (6th Cir. 1926)
• Decision Date: 05 January 1926
• Docket Number: No. 4421.,4421.
• Parties: BALTIMORE & O. R. CO. v. GOODMAN.

10 F.2d 58 (1926)

BALTIMORE & O. R. CO. v. GOODMAN.

No. 4421.

Circuit Court of Appeals, Sixth Circuit.

January 5, 1926.

Marshall & Harlan, of Dayton, Ohio, for plaintiff in error.

Mattern, Brumbaugh & Mattern, and I. L. Jacobson, all of Dayton, Ohio, for defendant in error.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.

MOORMAN, Circuit Judge.

This is an action for damages for the death of Nathan Goodman resulting from the collision of a truck with a railroad train at a grade crossing in an unincorporated village in Montgomery county, Ohio. The collision occurred in the daytime. The truck was moving eastwardly on the public highway and the train was running in a southwesterly direction. Plaintiff's evidence tended to show that deceased reduced the speed of the truck, when about 40 feet from the crossing, from 10 or 12 miles an hour to 5 or 6 miles at which rate he was moving at the time of the collision; that the view of the tracks north of the crossing, as one approached it from the west, was obscured by buildings and other obstructions; that there was a tool shed on the right of way 243 feet north of the crossing, and 24 feet from the west track there was a store which obstructed the line of vision to the north; that deceased could not have seen the approaching train until he was within 24 feet of the west rail of the west track, and even then could not have seen it beyond the tool shed; and according to calculations put in evidence he had practically no view to the north, from his position on the truck until the front of it was less than 20 feet from the west rail. There was a dispute in the evidence as to whether adequate signals of the train's approach to the crossing were given. The court submitted to the jury the issues of negligence and contributory negligence and a verdict was returned in favor of plaintiff, upon which judgment was rendered.

The main contention here is that the trial court erred in refusing to direct the jury to return a verdict for defendant. It is not denied that the train was running at the rate of about 60 miles an hour, and Goodman was moving, immediately before the collision, at the rate of 5 or 6 miles an hour; consequently, when Goodman was 18 feet west of the track the engineer was approximately 216 feet north of the crossing, each in view of the other. The engineer said he was maintaining a lookout the width of the right of way, but did not see the truck until the moment of collision. It was not shown that Goodman looked or listened for the train, but there is a rebuttable presumption that he did both. Beckham v. Hines, Agent (6 C. C. A.) 279 F. 241. Plaintiff accounts for the engineer's failure to see the truck when it emerged from behind the store on the theory that the tool house obstructed his line of vision, which shows, as she contends, that the train was running faster than 60 miles an hour. That may or may not be true, or it may be that there was a momentary diversion of attention, as a glance in another direction would have sufficed to prevent effective action, and perhaps discovery, in the brief time that elapsed before the two vehicles came in contact at the crossing — as to Goodman, for example, the looking to the south before looking north. It is suggested, but not argued, that there was no proof of negligence on the part of defendant. We do not think it necessary to discuss that question, since what has been said of the evidence as to the crossing signals sufficiently disposes of it.

It is, of course, true that Goodman was required to exercise, for his own safety, the degree of care that a reasonably prudent person ordinarily would exercise in the same or like circumstances, which included "the use of his faculties of sight and hearing." Flannelly v. D. & H. Co., 225 U. S. 597, 32 S. Ct. 783, 56 L. Ed. 1221, 44 L. R. A. ...