Baltimore & OR Co. v. Reeves

• Decision Date: 18 January 1926
• Docket Number: No. 4120.,4120.
• Citation: 10 F.2d 329
• Parties: BALTIMORE & O. R. CO. v. REEVES.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.2d 329 (1926)

BALTIMORE & O. R. CO. v. REEVES.

No. 4120.

Circuit Court of Appeals, Sixth Circuit.

January 18, 1926.

J. S. Rhinefort, of Toledo, Ohio (Morison R. Waite, of Cincinnati, Ohio, and Tyler, Northup, McMahon & Smith, of Toledo, Ohio, on the brief), for plaintiff in error.

Gustavus Ohlinger, of Toledo, Ohio (John L. Cable, of Lima, Ohio, on the brief), for defendant in error.

Before DENISON, and MACK, Circuit Judges, and ROSS, District Judge.

DENISON, Circuit Judge.

Reeves recovered verdict against the railroad for injuries received in a highway crossing collision. He was driving south in an automobile (Ford coupé), closed except that the window upon his left was open. The highway was paved. For some distance the railroad had been east of and parallel to and about 1,000 feet away, then the highway made a slight curve toward the railroad, and for 1,000 feet before reaching the crossing was straight; the railroad and highway converging at an angle of about 30 degrees. On the crossing the automobile was struck by a train, also going south. As in every such case, controlling questions are whether there was any substantial evidence of defendant's negligence, and whether there was any room for doubt about plaintiff's contributory negligence.

Without reciting details, it is entirely clear that the plaintiff was guilty of such failure to observe ordinary care as to approaching the crossing that he should be barred from recovery, unless that failure was excused by the composite effect of the three circumstances to be mentioned. These are, first, there were mist and rain and sleet, so that the visibility was poor; second, the pavement ended 150 feet from the crossing, and the intervening roadway was rough and rutty, as well as wet and slippery, so that Reeves had his engine in low gear, with the accompanying noise, and had his attention concentrated upon the road just in front of him; third, he was a stranger to the road, and did not know and did not observe that he was approaching a railroad crossing, and there was room for the jury to find that, consistently with due care on his part, he did not become obliged to know. It was within the right of the jury to find that there was no contributory negligence.

As to the statutory whistle and bell signals: There is very positive testimony that these signals were given, and the evidence to the contrary is of a negative character; but, again without discussing the details, we conclude that those witnesses who did not hear the signals had opportunities enough for hearing, and were likely enough to have heard and to have remembered them if they had been given, to make a substantial basis for a finding in favor of the plaintiff upon this issue.

This conclusion does not end the matter, for other grounds of negligence than the failure to give whistle and bell signals were alleged, and were submitted to the jury, and the verdict may have rested upon one or the other of those grounds, even though the jury was convinced that there was no failure of duty as to the statutory signals; hence, if there was substantial error as to submitting any of the other theories, the verdict cannot stand. This is the established federal rule.

The petition alleged that there was negligence in not having the train under proper control, and this theory of liability was submitted to the jury. Under the facts of this case, this is nothing but an allegation of excessive speed, and we find nothing tending to support a conclusion of negligence in this. The train was running at 50 to 60 miles an hour; such speed is customary, and not in itself improper; the crossing was in the open country, and the view unobstructed. No theory of negligence in the matter of speed and train control approaching a grade crossing in the country can be intelligently comprehended, unless by comparison with the supposed alternative, which would have been not open to complaint. Whatever reason there may sometimes be for finding that particularly dangerous crossings may require special and additional warnings, if crossed at high speed, to say that in ordinary, unobstructed, country crossings a defendant's negligence may be based alone upon customary, though high, speed, accompanied by the statutory crossing warnings, is to impose a standard of train control wholly impracticable and inconsistent with the respective rights of the railroad and the highway traveler.

Nor can this rule be changed by periods of darkness, storm, or other conditions of poor visibility. When the statutory signals have been given, we know of no principle which would justify taking the judgment of a jury as to whether an engineer should have run at less than customary speed approaching any ordinary, unobstructed, country crossing. This theory of negligence should not have been submitted to the jury in this case. This conclusion is in no wise inconsistent with Erie v. Weinstein (C. C. A. 6) 166 F. 271, 274, 92 C. C. A. 189. This crossing is of the same class as that considered by us in Murphy v. Pa. Ry., 1 F.(2d) 929.

Another ground of negligence alleged was that the railroad failed to keep in good repair the approaches to its tracks at this intersection. Section 8843 of the General Code of Ohio provides: "Companies operating a railroad in this state, shall build and keep in repair good and sufficient crossings over or approaches to such railway, its tracks, side-tracks and switches at all points where any public highway, street, lane, avenue, alley, road or pike is intersected by such railway, its tracks, side tracks or switches; also good and sufficient sidewalks on both sides of streets intersected by their roads, the full width of the right of way owned, claimed or occupied by them. Crossings and approaches outside of municipal corporations, the township trustees shall have power to fix and determine...