Clark v. Baltimore & OR Co.

• Decision Date: 10 April 1952
• Docket Number: No. 11437.,11437.
• Citation: 196 F.2d 206
• Parties: CLARK v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

196 F.2d 206 (1952)

CLARK v. BALTIMORE & O. R. CO.

No. 11437.

United States Court of Appeals Sixth Circuit.

April 10, 1952.

Marston G. Bergmann and Robert H. Dawson, Cleveland, Ohio (Marston G. Bergmann, Cleveland, Ohio, on the brief), for appellant.

Dwight B. Buss, Cleveland, Ohio (William F. Marsteller, Dwight B. Buss, Cleveland, Ohio, on the brief; Baker, Hostetler & Patterson, Cleveland, Ohio, counsel), for appellee.

Before HICKS, Chief Judge, and ALLEN and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

This is an appeal from a directed verdict of no cause of action in a personal injury suit arising out of a collision between a Baltimore & Ohio Railroad locomotive and an automobile at a grade crossing in the Village of Middleburg Heights, Ohio.

On March 24, 1948, Edna Clark, a girl thirteen years old, for whom this suit was brought, her younger sister, and another girl of about the same age, were walking along a main traveled highway in the village at about four o'clock in the afternoon, when they were offered a ride by Oliver J. Proteau, who was driving by in his automobile. Proteau was known by the children, and the girls got into the back seat of the car. Proteau, alone in the front seat, started down the highway. He lived in the vicinity, residing between 1,000 and 2,000 feet from the intersection of the railroad and the highway. As he progressed, he drove at a rate of speed of at least sixty miles an hour — perhaps seventy — down toward the railroad crossing. He successively overtook two other automobiles, passing them on the left-hand side of the yellow line in the center of the highway on the approach to the tracks, in violation of the law forbidding such passing on the approach to the crossing. At a point 470 feet from the crossing, Proteau had driven over to the left-hand side of the highway to pass the first car, which he overtook at a point later fixed at 415 feet from the crossing. At this point, there was another car ahead about 200 feet, slowing up for the crossing, and Proteau passed this car on the wrong side of the road. Apparently an instant after Proteau passed this second car, he became aware that the locomotive and train were approaching the crossing. He locked his brakes and from the evidence of the tire marks on the highway, skidded 110 feet, passing, in the course of the skid, back to the right-hand side of the highway. He crashed into the side of the locomotive as it passed over the intersection with great force, the impact killing Proteau and causing serious injuries to the three girls in the rear seat. The train had been coming down the track approaching the crossing at a speed of about thirty miles an hour, and was brought to a stop after the collision with its third car on the roadway.

There is no issue as to the negligence of Proteau. But appellant claims that the railroad was also guilty of negligence contributing to the accident; and, since it is conceded that the negligence of Proteau is not imputable to appellant, she contends that the court was in error in directing a verdict of no cause of action, and that the question of the railroad's negligence presented an issue of fact for the jury.

The alleged negligence of the railroad is based upon the claim that the accident was due to its maintenance of a dangerous crossing in violation of the law of the State of Ohio; that, further, the engineer of the locomotive did not blow the whistle or ring the bell on his approach to the crossing, as required by state law; that this claimed negligence contributed to the accident; that the evidence presented a question of fact for the jury; and that the district court was in error, as a matter of law, in directing a verdict of no cause of action.

From an examination of the record, it is obvious that appellant has much to overcome in order to sustain the contention that the claimed failure of the railroad company to give warning signals, or the claim of maintaining an "extra-hazardous crossing" contributed to the collision. Proteau, as has been stated, lived near the crossing. He was in the habit of driving his car on the highway in question, and certainly knew of the intersection of the railroad tracks at that point better than most of the people who drove over it. Moreover, on each side of the crossing, facing the traveler on his right as he approached, were the large, familiar railroad crossarm warning signs that could be seen 1,200 feet away. On the right-hand side of the highway, 400 feet from the crossing, was the usual highway disk sign warning travelers that they were approaching a railroad crossing. Almost opposite this sign was painted on the highway a large cross with a railroad sign, "RR," to warn oncoming automobile traffic. Down the center of this straight highway was a yellow line, warning vehicles not to pass.

In the face of the foregoing, Proteau, who must be presumed to have known the crossing, approached it at a speed of between sixty and seventy miles per hour, passing the other cars on the wrong side of the yellow warning line, disregarding his own knowledge of the crossing, as well as ignoring the three different warning signs along the highway. When he applied his brakes, leaving tire marks on the highway for a distance of more than 100 feet, he skidded into the side of the locomotive with the sound of an explosion and an impact that wrecked his car.

The law of the State of Ohio, upon which appellant relies, which requires extra precautions to be taken by a railroad for the safety of travelers at extra-hazardous, or peculiarly dangerous grade crossings, was not pleaded in the complaint, and it is only by language in certain of the cases cited in the briefs on appeal that we are made aware, specifically, that such a statute exists. The district court held that there was no evidence that the statutory precautions or provisions which are incumbent on the railroad to take were not complied with; that, on the contrary, the testimony was to the effect that all such precautions were taken; that because of the failure to introduce evidence to the effect that the crossing was of an extra-hazardous nature, there was no proof of negligence in this respect for which the railroad might be charged; and that there was no evidence in the case that the crossing was of an extra-hazardous nature.

Appellant submits that a traveler could see only 100 feet down the track from a point 121 feet from the crossing; 200 feet from a point 61 feet from the crossing; and that a clear view of 1,200 feet down the track in the direction from which the locomotive was approaching could only be had from a point on the highway 35 feet from the track because of the obstruction of a building. Because of these circumstances, counsel for appellant submits that the question as to whether the crossing was extra-hazardous should have been submitted to a jury.

It may, however, be said that the obstruction to Proteau's view down the track had nothing to do with this accident. The skid marks of his tires on the highway show that he knew of the oncoming train at least 110 feet from the crossing, and since the Ohio courts hold that the reaction time of a driver in applying his brakes when approaching a railroad crossing, as a matter of judicial notice, is from ¾ of a second to one second, an additional 66 feet is to be added to the distance which Proteau would travel during ¾ of a second, at the speed at which he was driving. He, therefore, knew of the approaching train when he was at a point at least 176 feet from the crossing, which, as far as this case is concerned, is the same as though he had seen the train approaching when he was that distance from the crossing.

In Carter v. Pennsylvania Railroad Co., 6 Cir., 172 F.2d 521, this court held that, under Ohio law, where a clear view of the railroad track could...