Norfolk & W. Ry. Co. v. Holbrook

• Decision Date: 06 July 1928
• Docket Number: No. 5026-5028.,5026-5028.
• Citation: 27 F.2d 326
• Parties: NORFOLK & W. RY. CO. v. HOLBROOK.
• Court: U.S. Court of Appeals — Sixth Circuit

27 F.2d 326 (1928)

NORFOLK & W. RY. CO. v. HOLBROOK.

Nos. 5026-5028.

Circuit Court of Appeals, Sixth Circuit.

July 6, 1928.

Homer E. Holt and John H. Holt, both of Huntington, W. Va. (Holt, Duncan & Holt, of Huntington, W. Va., on the brief), for plaintiff in error.

John M. Waugh, of Ashland, Ky. (Waugh & Howerton, of Ashland, Ky., on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

DENISON, Circuit Judge.

When his automobile was struck by a railway train at a highway crossing, Holbrook was badly injured and his wife and child killed. On his own behalf and as administrator of each deceased, he brought these suits in the court below; they were for convenience tried as one, and there was a verdict for the plaintiff in each. This appeal sharply presents two questions of law: Was there a lack of any evidence showing the railroad's negligence? and was there contributory negligence by Holbrook, conclusively barring recovery? As to the latter question, the result which we reach makes unimportant any distinction there might be between the three cases.

Relying upon our holding in B. & O. R. Co. v. Reeves, 10 F.(2d) 329, the railroad insists that it was error to submit to the jury whether the speed of the train was an element upon which a finding of negligence could be rested. The situation of this railroad crossing may well distinguish it from that involved in the Reeves Case. It was within the right of the jury to find that the character and extent of traffic on this highway (one of the great transcontinental highways under the adopted general plan), and the extent and kind of the obstacles, both artificial and natural, which obscured the view of a traveler approaching the track as Holbrook did, were in their composite effect such as to require the railroad to maintain some special warning signals at this crossing if it wished to run its train at the customary high speed, and that lacking such protection for highway travelers, the speed was negligent. The case in this respect is to be classified with Erie v. Weinstein (C. C. A.) 166 F. 271 (and see note page 72, 22 F.2d), rather than with Murphy v. Pa. R. R. (C. C. A.) 1 F.(2d) 929, and the Reeves Case.

As to Holbrook's contributory negligence, the railroad insists that the case is covered by B. & O. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. ___. We think not. Under the circumstances here existing, the jury had the right to find that Holbrook met...