Baltimore & ORR v. Corbin

• Decision Date: 09 December 1940
• Docket Number: No. 7520.,7520.
• Parties: BALTIMORE & O. R. R. v. CORBIN
• Court: U.S. Court of Appeals — District of Columbia Circuit

73 App. DC 124, 118 F.2d 9 (1940)

BALTIMORE & O. R. R. v. CORBIN

No. 7520.

United States Court of Appeals for the District of Columbia.

Decided December 9, 1940.

George E. Hamilton, John J. Hamilton, George E. Hamilton, Jr., Henry R. Gower, and Leo N. McGuire, all of Washington, D. C., for appellant.

Simon Hirshman, of Washington, D. C., for appellee.

Before GRONER, Chief Justice, and MILLER and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

The appeal is from a judgment of the District Court awarding $5,000 damages for the wrongful death of James R. Corbin in an action brought by his executrix against the Baltimore and Ohio Railroad. The judgment was rendered on the verdict of a jury.

Plaintiff's decedent was killed at 12:19 a. m., February 26, 1937, in a collision between the automobile which he was driving and defendant's train at the crossing of Bates Road, Northeast, and defendant's right of way. Defendant's train was proceeding in a southerly direction into Washington at a speed of between 65 and 70 miles per hour. The southbound tracks on which the collision occurred are on the west side of the crossing, while the north-bound tracks, the only others maintained by defendant at that point, are on the east side. Decedent approached from the east, crossed the northbound tracks, and struck the locomotive at the front. There were no eyewitnesses to the crash. The car was found completely demolished 174 feet south of the crossing and 14 feet east of the northbound tracks. Police officers who arrived at the scene about 20 minutes after the accident found that the signal flashlights and bells, which defendant had erected on each side of the crossing to warn motorists of approaching trains, were not operating. Examination of the battery box, a solid concrete structure located 18 feet east and 12 feet south of the crossing, revealed that one of the 23 batteries was broken. When this battery was removed and the remaining batteries were connected together, the warning lights and bells resumed operation. There is undisputed testimony that the headlight of the train was burning, that the locomotive bell was ringing, and that its whistle was blowing from a distance of 1500 feet until the crossing was reached.

North of Bates Road and east of defendant's right of way is a bank 10 feet or more in height. Five witnesses testified at the trial that a person approaching from the east could not see any distance up the track to the north until he came within a very few feet of the crossing. From the testimony of other witnesses, and from physical exhibits, it appears that an unobstructed view of the track to the north could be had from approximately 20 feet east of the northbound track. The decedent was familiar with the crossing.

At the close of the evidence, the trial court refused to direct a verdict for defendant. Among other instructions, the jury was told that if the flashlights and bells were not operating "this fact lessened plaintiff's otherwise obligation to have discovered in time the approaching train and that the failure of said lights and bells to operate at the time and place in question was in the nature of an invitation to cross the railroad tracks which fact the jury are entitled to consider along with the other evidence in the case as to the contributory negligence, if any, of the decedent." The defendant complains of these actions of the trial court, and also of its refusal to grant requested instruction No. 8, that if the jury "find from the evidence that the breaking of the battery jar was due to the concussion resulting from the collision between the automobile and the train, then they are instructed that their verdict should be for the defendant."

The chief issue is whether the warning lights and bells were operating at the time of the accident, for it was assumed below and in the argument here that if the warnings were not working defendant's negligence was established. Defendant relies on its evidence that the signals were working to establish that decedent was contributorily negligent as a matter of law. We think the trial court correctly submitted the question to the jury. Two witnesses testified that when they passed the crossing earlier in the evening of February 25, one "between 7:30 and 8 o'clock" and the other "about 9 o'clock," the warning lights and bells were not operating, although trains were on the crossing or within the signal block. Defendant sought to impeach the testimony of one of these witnesses with a prior inconsistent statement which he stated he signed without reading. It is undisputed that the warnings were not working after the accident. Defendant's theory is that the shock of the collision transmitted through vibrations in the earth broke the battery, thus breaking the circuit and disabling the system. An expert witness testified for defendant that such a shock "could have caused" one only of the batteries to break, even though, as was clear from the evidence, none of the wreckage of the car struck the battery box. Two experts testified for plaintiff that the concussion "could not break out the bottom of only one of the battery jars," or...