Chesapeake & O. Ry. Co. v. Waid

• Decision Date: 10 April 1928
• Docket Number: No. 2678.,2678.
• Citation: 25 F.2d 366
• Parties: CHESAPEAKE & O. RY. CO. v. WAID.
• Court: U.S. Court of Appeals — Fourth Circuit

25 F.2d 366 (1928)

CHESAPEAKE & O. RY. CO. v. WAID.

No. 2678.

Circuit Court of Appeals, Fourth Circuit.

April 10, 1928.

C. W. Strickling, of Huntington, W. Va. (Douglas W. Brown, C. N. Davis, and Fitzpatrick, Brown & Davis, all of Huntington, W. Va., on the brief), for plaintiff in error.

Ashton File, of Beckley, W. Va., and A. G. Fox, of Bluefield, W. Va. (File, Goldsmith & Scherer, of Beckley, W. Va., and Sanders, Crockett, Fox & Sanders, of Bluefield, W. Va., on the brief), for defendant in error.

Before PARKER and NORTHCOTT, Circuit Judges, and WEBB, District Judge.

PARKER, Circuit Judge.

This is the second time that this case has been before us. On the former hearing we held that there was error in directing a verdict for defendant, and granted a new trial. 14 F.(2d) 90. On the new trial there was a verdict and judgment for plaintiff, and defendant now complains because the court did not again direct a verdict in its favor. The evidence on the second trial was substantially the same as upon the first, except that there was additional evidence as to the darkness prevailing at the time of plaintiff's injury. The facts were fully stated in the former opinion (14 F.2d 90 and 91), and need not be repeated. We would affirm the judgment on the ground that our former opinion is the law of the case, but for the contention that it conflicts with the more recent decision of the Supreme Court in B. & O. R. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. ___. We shall examine this contention.

In the Goodman Case, the deceased was struck at a crossing in the daytime, by a train running at the rate of 60 miles an hour. It appeared that he drove upon the crossing from behind a building, which obstructed his view of the on-coming train, and that, before going upon the track, he did not stop or look. The holding of the court was that the failure to stop and look under such circumstances was contributory negligence as a matter of law, requiring the direction of a verdict for the defendant. This rule had been established as the law in this circuit by repeated decisions of this court. Neininger v. Cowan (C. C. A. 4th) 101 F. 787; Dernberger v. B. & O. R. Co. (C. C. A. 4th) 243 F. 21; Southern Ry. v. Priester (C. C. A. 4th) 289 F. 945. In the Neininger Case, it was held that one who drove upon a railroad crossing from behind an obstruction without stopping to look or listen would be held guilty of contributory negligence as a matter of law. In the Dernberger Case, the same was held as to one traveling in a wagon, who looked 150 feet from the crossing, but failed to look again after his view had been obstructed by weeds and underbrush growing near the track. In the Priester Case and in the very recent case of Auvil v. Western Md. R. Co. (C. C. A. 4th) 19 F.(2d) 30, we held that one who goes upon a railroad track in front of an approaching train, which he might have seen or heard, is guilty of contributory negligence barring recovery. And in the recent case of Atlantic Coast Line R. Co. v. McLeod (C. C. A. 4th) 11 F.(2d) 22, we held the same as to one who went on the track in the nighttime in front of a train which had its headlight burning, even though he testified that he looked and did not see it approaching, as we thought that such testimony had no probative value under the circumstances of that case.

None of these cases, however, has any application to the case at bar, nor do we think that the decision in the Goodman Case is applicable. That case dealt with a train running in the daytime at the rate of 60 miles an hour, which deceased might easily have seen if he had stopped and looked in the direction from which it was coming. This deals with cars pushed by an engine in the gloom of gathering darkness without the display of warning lights or the giving of proper signals. In that case the evidence showed that the injured person failed to look. In this there is evidence that he looked but failed to see the approaching cars, and his failure to see them is explained by the gathering darkness and the absence of lights on the leading car.

Of course, there is much testimony in contradiction of the testimony offered by plaintiff; but, as we said in our former opinion, we are not here to weigh evidence. On a motion to direct a verdict for defendant, the rule is well settled that the evidence must be viewed in the light most favorable to the plaintiff. Union Pac. R. Co. v. Huxoll, 245 U. S. 535, 539, 38 S. Ct. 187, 62 L. Ed. 455; Mims v. Reid (C. C. A. 4th) 286 F. 900. And, viewing it in this light, we have no doubt that the queston of contributory negligence was one for the jury. Plaintiff testified that, as he passed the corner of the Terminal building, 70 feet from the track, he looked in the direction from which the cars were coming "and did not see any train or any lights or anything, and did not hear any whistle or bell or anything." He testified that he then gave his attention to the other side of the crossing, where an engine was standing with its headlight casting its rays of light in his direction; that he had to determine whether this engine was standing still or moving, and decided that it was standing still; that he then gave his attention to the crossing, which was a narrow "affair," made of boards, and very rough; and that, just as he was entering upon the crossing, he was struck by the on-coming cars. He testified that he was traveling at the rate of 6 or 8 miles an hour, and, as the District Judge has pointed out, this means that not more than 6 or 8 seconds elapsed from the time when he looked at the corner of the Terminal building and the time when he was struck. He might have seen the approaching cars if he had looked a second time in the direction from which they were coming before going upon the track. But we think that he should not be held guilty of contributory negligence as a matter of law because he did not look twice in the same direction within 6 seconds. The engine to his left demanded a share of his attention. The crossing itself demanded a share. Under such circumstances, is he to be held guilty of negligence as a matter of law because of his failure to see a danger which, if his evidence be believed, he looked for once only 6 seconds before he was struck, and failed to see because of defendant's negligent failure to display the lights and give the signals which every traveler along the highway had a right to expect? We think not. As said by the late Judge Woods in the Zanzinger Case (C. C. A.) 269 F. at 554:

"How intently and how constantly, or how often, he should listen and look in the exercise of the prudence of a reasonably careful man, depends upon all the circumstances; and one of the circumstances is the rightful expectation of the traveler that the railroad will perform the duty required by law and by ordinary care of warning him by sounding a locomotive bell or whistle on approaching a crossing. Whether a traveler on the highway has looked and listened as a man of ordinary prudence would is generally a question for the jury."

And, to quote again what was said by Mr. Justice Lamar in Grand Trunk Ry. v. Ives, 144 U. S. 408, 417, 12 S. Ct. 679, 682, 36 L. Ed. 485, quoted with approval by Chief Justice Fuller in Baltimore & O. R. Co. v. Griffith, 159 U. S. 603, 611, 16 S. Ct. 105, 108 (40 L. Ed. 274), and by Mr. Justice Harlan in Texas & P. R. Co. v. Gentry, 163 U. S. 353, 368, 16 S. Ct. 1104, 1109 (41 L. Ed. 186):

"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms `ordinary care,' `reasonable prudence,' and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case, may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reasonable men must draw the same conclusion...