Glinsey v. Baltimore & Ohio Railroad Co.

• Decision Date: 16 April 1974
• Docket Number: No. 73-1545.,73-1545.
• Citation: 495 F.2d 565
• Parties: Levorne GLINSEY, Adm'x, et al., Plaintiffs-Appellees, v. BALTIMORE & OHIO RAILROAD CO., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

495 F.2d 565 (1974)

Levorne GLINSEY, Adm'x, et al., Plaintiffs-Appellees, v. BALTIMORE & OHIO RAILROAD CO., Defendant-Appellant.

No. 73-1545.

United States Court of Appeals, Sixth Circuit.

Argued November 28, 1973.

Decided April 16, 1974.

Charles F. Clarke, Cleveland, Ohio, for defendant-appellant; Henry D. Light, Lee E. Larson, Cleveland, Ohio, on brief; Squire, Sanders & Dempsey, Cleveland, Ohio, of counsel.

Donald P. Traci, Spangenberg, Shibley, Traci & Lancione, Cleveland, Ohio, for plaintiffs-appellees.

Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.

CELEBREZZE, Circuit Judge.

This is an appeal from a judgment against Appellant in the amounts of $135,000 for the estate of Willie Glinsey and $20,000 for James Glinsey. Federal jurisdiction is founded on diversity of citizenship. The case arose from a railroad-highway crossing accident, in which Willie Glinsey was killed and James Glinsey was injured. The collision occurred on December 5, 1969, at 9:30 p. m., in a light industrial and residential area of Elyria, Ohio.

Appellees James Glinsey and Levorne Glinsey, administratrix of Willie Glinsey's estate, sued the Baltimore & Ohio Railroad Company (B&O), claiming that the train which struck the Glinseys' car had failed to blow its whistle and sound its bell as required under an Ohio statute, thus causing the accident. Before trial, Appellees filed a motion in limine, seeking to exclude evidence that Willie Glinsey may have been intoxicated and that the Glinseys' car may have been stolen.

At a pre-trial conference Appellees argued that such evidence was not relevant because section 4955.34, Ohio Rev. Code,¹ imposes absolute liability and deprives a railroad which has violated section 4955.32 of the defense of contributory negligence. By arguing that section 4955.34 imposes such liability, Appellees were employing a legal theory which apparently had not before been urged upon an Ohio state court. The District Court agreed with Appellees and imposed "strict liability" on Appellant, thus excluding evidence of the driver's conduct.² The District Court ruled that, as a matter of law, the train's failure to sound its whistle and bell (if proven) was at least one proximate cause of the accident. The jury's role was thus relegated to determining whether the train had sounded its whistle and bell before striking the Glinseys' car. The jury decided against the B & O on this question.

Appellant asserts that the District Court committed several errors. The most significant alleged error stems from Appellant's contention that sections 4955.32 and 4955.34 do not deprive a railroad of the defense of contributory negligence. A second error asserted is that the District Court removed from the jury the question of proximate cause. Third, Appellant asserts that evidence should have been admitted to show that James Glinsey was engaged in a joint enterprise with driver Willie Glinsey, so as to impute the driver's alleged negligence to the passenger. Fourth, Appellant asserts that Appellees' evidence concerning the failure to sound the bell and whistle should have been excluded. Fifth, Appellant challenges the District Court's jury instruction that Ohio law requires a train to sound its whistle from 80 to 100 rods from the crossing and continuously until the train has reached the crossing.

We deal first with Appellant's contentions concerning contributory negligence and proximate cause. Ohio law governs our answers to these questions, since the District Court has jurisdiction solely on the basis of diversity of citizenship. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We must apply Ohio law as we believe the Ohio Supreme Court would state it, if it had the opportunity to do so in this case. See Pomerantz v. Clark, 101 F. Supp. 341, 344-345 (D.Mass.1951); Essex Universal Corp. v. Yates, 305 F.2d 572, 580-582 (Friendly, J., concurring) (2d Cir. 1962).

The statute invoked by Appellees states:

"Every company shall attach to each locomotive engine passing upon its railroad a bell of the ordinary size in use on such engines and a steam or compressed air whistle. When an engine in motion and approaching a turnpike, highway, or street crossing or private crossing where the view is obstructed by embankment, trees, curve, or other obstruction to view, upon the same line with the crossing, and in like manner where the railroad crosses any other traveled place, by bridge or otherwise, the engineer or person in charge of such engine shall sound such whistle at a distance of at least eighty and not further than one hundred rods from such crossing and ring such bell continuously until the engine passes the crossing." § 4955.32.

"Every engineer or person in charge of an engine who fails to comply with section 4955.32 of the Revised Code is personally liable to the state for a penalty from $50 to $100—The company in whose employ such engineer or person in charge of an engine is, as well as the person himself, is liable in damages to a person or company injured in person or property by such neglect or act of such engineer or person." § 4955.34

Thus, a railroad must blow its whistle at a certain distance from each crossing and ring its bell until it reaches the crossing. Section 4955.34 imposes liability in damages for injuries caused by a failure to do this.

These two sections were first interpreted in Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66 (1877), where the Ohio Supreme Court stated:

"It is evident from the statutory language that the failure to give signals must have occasioned the accident, that is, must have been the proximate cause of it before recovery can be had. The injury must happen "by neglect" of the engineer. If it occurred from some other cause, liability can not arise therefor, under that statute. Indeed, this statutory duty is not different in the responsibility it imposes upon railroad companies from that arising under the common law. Railroads must be careful. If they neglect this duty and such neglect occasions damage, they are responsible. But, though they may be negligent in some degree, if no damage arises, no liability exists. That is, if the injury complained of was not brought about by the negligence in question, but by something else not chargeable to the company, they can not be held.

Before, therefore, plaintiff can recover, because signals were not given, he must cause it to appear that this failure of duty brought about the disaster; for if his own imprudence was the moving cause, he can not maintain his action, although the company may not have observed the provisions of the statute."

The Rathgeb syllabus stated Ohio law:³

"Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed."

Subsequent Ohio decisions followed the Rathgeb holding, often finding as a matter of law that a plaintiff's failure to use "ordinary prudence" and his sight and hearing had been the cause of the accident, despite the railroad's failure to obey statutory or administrative duties.⁴ Baltimore & O. R. R. v. McIlyar, 77 Ohio St. 391, 83 N.E. 497 (1908) (plaintiff landowner's refusal to allow railroad onto his property to mend fencing as required by statute "proximately contributed" to bring about the dangerous fencing, which later caused injury to plaintiff's horse); Pennsylvania R. R. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826 (1927) (plaintiff "directly contributed" to the accident by failing to look for an approaching train); Cobb v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466 (1949) (plaintiff's inattention in crossing the tracks was "the sole proximate cause" of the collision); Capelle v. Baltimore & O. R. R., 136 Ohio St. 203, 24 N.E.2d 822 (1940) (plaintiff's negligence was "the approximate cause of the collision," with the railroad's statutory violation a "mere condition" of the accident); Patton v. Pennsylvania R. R., 136 Ohio St. 159, 24 N.E.2d 597 (1939) (decedent's failure to exercise due care was "the proximate cause" of his death.)

For a railroad's violation of a safety statute to have been "the proximate cause" of an accident, it must be shown that the accident would not have occurred if the railroad had met its obligations. Thus, if a driver would not have avoided an accident even if the train had fulfilled its legal duties, the railroad would not be liable for injuries suffered, since its legal violation would not have been the proximate cause of the accident. North v. Pennsylvania R. R., 9 Ohio St.2d 169, 224 N.E.2d 757 (1967); Zuments v. Baltimore & O. R. R., 27 Ohio St.2d 71, 271 N.E.2d 813 (1971).

Of course, it is not clear from the face of the Ohio whistle-bell statute whether this conclusion mandates a contributory negligence instruction or merely requires a plaintiff to prove proximate causation. The Ohio Supreme Court has, however, resolved this question. See Rathgeb, supra. In Bahm v. Pittsburgh & L. E. R. R., 6 Ohio St.2d 192, 217 N.E.2d 217 (1966), the Court reaffirmed that contributory negligence was a defense. However, the Court pointed out that it would not constitute a defense if a plaintiff had been only slightly negligent. The Court's syllabus stated:

"Use of the phrase, `in the slightest degree,\' or the phrase, `in any degree,\' in connection with contributory negligence in a charge to a jury constitutes prejudicial error whether the phrase pertains to the issue of proximate cause or to the issue of negligence itself."

In 1971 the Ohio Supreme Court reaffirmed this view in another railroad crossing case, where the Court said:

"The driver of a motor vehicle about to pass over a railroad

...