Arrasmith v. Pennsylvania Railroad Co.

Decision Date16 May 1969
Docket NumberNo. 18612.,18612.
PartiesHarry Richard ARRASMITH, Norma Arrasmith, Robert Brewer, Administrator of the Estate of Paul Gorman, Deceased, Albert Butts and Thomas Butts, Plaintiffs-Appellants, v. The PENNSYLVANIA RAILROAD CO., Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Bernard Bernard, Columbus, Ohio, for appellants; Teaford & Bernard, Columbus, Ohio, on brief.

Francis S. McDaniel, Dayton Ohio, for appellee; Altick & McDaniel, Dayton, Ohio, on brief.

Before WEICK, Chief Judge, and PHILLIPS and EDWARDS, Circuit Judges.

EDWARDS, Circuit Judge.

This is a railroad crossing collision case. Plaintiffs-appellants were passengers in a car traveling east on Grove Avenue in the city of Xenia, Ohio, at approximately one o'clock in the morning on April 4, 1964. The car they were in came to a railroad switch track marked only by a crossbuck sign and crashed into a boxcar which was standing completely blocking Grove Avenue. One of the passengers was killed and the other passengers allege serious injuries.

The matter was heard by a United States District Judge in the Southern District of Ohio, Western Division, on pleadings, depositions, affidavits, photographs and other exhibits. He made a finding of fact and then granted defendant's motion for summary judgment, holding that the railroad had violated no statutory duty and was free from negligence as a matter of Ohio law. Only the passengers involved in the accident appeal.

As we have noted, this accident happened in Ohio. Hence, of course, the District Court and this court are required to apply Ohio law. Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Under Ohio law the contributory negligence, if any, on the part of appellants' driver cannot be imputed to his passengers. Cincinnati Street Ry. Co. v. Wright, 54 Ohio St. 181, 43 N.E. 688, 32 L.R.A. 340 (1896); Canterbury v. Pennsylvania R.R., 158 Ohio St. 68, 107 N.E.2d 115 (1952).

Under federal law, as well as under Ohio law (Ohio Rev.Code § 2311.041 (Supp.1968)), on a motion for summary judgment the evidence is to be construed most favorably towards the party opposing the motion. E. g., United States v. Diebold, 369 U.S. 654, 82 S. Ct. 993, 8 L.Ed.2d 176 (1962); DeWitt Motor Co. v. Chrysler Motors Corp., 391 F.2d 912 (6th Cir.1968); Rogers v. Peabody Coal Co., 342 F.2d 749 (6th Cir. 1965). In this last case this court said:

"Summary judgment should be granted only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is and no genuine issue of fact remains for trial. The purpose of the rule is not to cut litigants off from the right to trial by jury if they really have issues to try. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 88 L.Ed. 967 (1944).
"In the instant case, plaintiff seeks recovery based upon defendant\'s alleged negligence. This Court has previously noted that there is eminent authority in support of the proposition that issues of negligence are ordinarily not susceptible of summary adjudication, but should be resolved by trial in the ordinary manner. Aetna Insurance Company v. Cooper Wells & Company, 234 F.2d 342, 344 (6 Cir. 1956), citing 6 Moore\'s Federal Practice (2d ed.) § 56.17 42 at p. 2232 and cases cited at note 4 therein. It is only in the exceptional negligence case that the rule should be invoked. Furlong v. Stichman, 24 F.R.D. 400 (D.C.S.D.N.Y.1959). And even where the trial judge reasonably may surmise that plaintiff is unlikely to prevail upon a trial, that is not a sufficient basis for refusing him his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them. Harl v. Acacia Mutual Life Insurance Company, 115 U.S.App.D.C. 166, 317 F.2d 577, 580 (1963) citing with approval Sprague v. Vogt, 150 F.2d 795, 801 (8 Cir.1945)." Rogers v. Peabody Coal Co., supra at 751.

Appellants claim (or their affidavits and exhibits on favorable view show): 1) This accident occurred on a dark and overcast night in an industrial area of a city. 2) The driver of the car in which plaintiffs were riding was traveling at 25-35 miles per hour. 3) It involved an industrial switch track crossing over a city street. 4) All the railroad cars involved in the operation had been moved out of the plant yard but the last one had been left stopped over the crossing without any necessity for this being done. 5) The plant building and fence abutted closely upon the street on appellants' right, two shacks and trees abutted on the left, and there was a hill ahead, all of which facts served to obliterate any silhouette of the train. 6) The boxcar was situated completely astraddle of the street with the wheels off the traveled portion to each side. 7) The boxcar body was three and one-half feet above the pavement and hence out of the reflection of the headlights on appellants' car turned to low beam. 8) There were no lights showing on the freight car or the train and no street light of any kind closer than 500 feet. 9) The train crew had a stock of fusees available in the engine, had not employed them prior to the accident, but did set them out afterward.

An even more succinct summary of appellants' position is that a proximate cause of the accident was the following:

And that this was the result:

It should be noted that the first picture, Exhibit A, was prepared and filed by appellee railroad as a representation of what plaintiffs' driver could have seen on the night in question at a distance of 50 feet with his headlights on low beam.

As we see the matter, if we assume the facts above, as settled law on this appeal requires us to do, in order to affirm the District Court we would have to come very close to saying that in Ohio a railroad at a grade crossing can do no wrong. This is not the rule of law in Ohio, strict as its rules of law pertaining to grade crossing accidents may be.

The fundamental statement of position of the Ohio Supreme Court on the relative rights of highway users as opposed to a railroad at a grade crossing is as follows:

"The right of a railroad company to enjoy the use of its road at the crossing of a common highway, and the right of the traveling public to use the highway, are co-ordinate and equal. Reasonable care and prudence must be exercised by each, in the use of the crossing, so as not to interfere unnecessarily with the other." Pittsburgh, Ft. Wayne & Chicago Ry. v. Maurer, 21 Ohio St. 421 (1871); City of Cincinnati v. Luckey, 153 Ohio St. 247, 250, 91 N.E.2d 477, 479 (1950).

Thus fundamental Ohio law imposes the duty of reasonable care at a grade crossing equally upon the railroad and the public.

Ohio has also, of course, enacted an assured clear distance rule by statute. The statute reads in pertinent part:

"No person shall operate a motor vehicle, trackless trolley, or streetcar in and upon the streets and highways at a speed greater or less than is reasonable or proper, having due regard to the traffic, surface, and width of the street or highway and any other conditions, and no person shall drive any motor vehicle, trackless trolley, or streetcar in and upon any street or highway at a greater speed than will permit him to bring it to a stop within the assured clear distance ahead." Ohio Rev.Code § 4511.21 (1965).

It has been said that the Ohio Supreme Court has given this statute the strictest interpretation of any state in the union with a similar rule.1

The assured clear distance rule, however, is directly applicable, in the words of the statute, to the operator of an automobile and establishes his negligence as a matter of law if he fails to drive in accordance with the terms of the statute. The great majority of cases in Ohio decided in relation to the assured clear distance rule are cases in which the Ohio courts have held that the driver of a vehicle was barred from recovery by his contributory negligence because of violation of the assured clear distance statute. E.g., Woods v. Brown's Bakery, 171 Ohio St. 383, 171 N.E.2d 496 (1960); Whitaker v. Baumgardner, 167 Ohio St. 167, 146 N.E.2d 729 (1957); Bickel v. American Can Co., 154 Ohio St. 380, 96 N.E.2d 4 (1950); Smiley v. Arrow Spring Bed Co., 138 Ohio St. 81, 33 N.E.2d 3, 133 A.L.R. 960 (1941). See also Carufel v. Chesapeake & Ohio Ry., 286 F.2d 193 (6th Cir.1961); Buster v. Baltimore & Ohio R.R., 252 F.2d 173 (6th Cir.1958); Berke v. Baltimore & Ohio R. R., 232 F. 2d 762 (6th Cir. 1956).

In our instant case the cases cited above are generally inapplicable because, as we have noted, under Ohio law the negligence of the driver may not be imputed to his passengers.2

The assured clear distance rule has, however, been held to have a bearing on the question of railroad negligence. The Ohio Supreme Court has held that when a train is stopped on a grade crossing in open country, with good visibility, "the presence of the train is usually adequate notice to an approaching traveler on the highway that the crossing is preempted * * *." Capelle v. Baltimore & Ohio R.R., 136 Ohio St. 203, 24 N.E.2d 822 (1940)3; Canterbury v. Pennsylvania R. R., 158 Ohio St. 68, 107 N.E.2d 115 (1952). Under such facts, the Ohio Supreme Court held implicitly that the train was "a discernible object" as a matter of law and no more precautions were required by the railroad to meet its standard of reasonable care than those imposed by statute. In our instant case the only statutory duty imposed on the railroad at this particular crossing was maintenance of a crossbuck sign. Ohio Rev.Code § 4955.33 (1954), as amended, (Supp.1968).

But Ohio case law also holds that at a grade crossing where "special circumstances" make the crossing "peculiarly hazardous" there may be a duty on the part of the railroad to take precautions beyond those imposed by statute. Capelle v. Baltimore & Ohio R. R., supra; Canterbury v....

To continue reading

Request your trial
7 cases
  • Harrison v. Bloomfield Building Industries, Inc., 20374.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 21 Diciembre 1970
    ...judgment the pleadings and affidavits are to be construed most favorably towards the party opposing the motion, Arrasmith v. Pennsylvania Railroad Co., 410 F.2d 1311 (6th Cir.), but the party resisting the motion may not rest on the allegations or denials of his pleadings. Rather, he must s......
  • CITY OF DETROIT, BY DETROIT WATER v. State, Civ. A. No. 81-74116.
    • United States
    • United States District Courts. 6th Circuit. United States District Court (Western District Michigan)
    • 28 Septiembre 1984
    ...respect to any material fact. See County of Oakland v. City of Berkley, 742 F.2d 289 at 297 (6th Cir.1984); Arrasmith v. Pennsylvania Railroad Co., 410 F.2d 1311, 1313 (6th Cir.1969). Accordingly, WCRC's motion for summary judgment is granted and Plaintiffs' motion for summary judgment is I......
  • Baker v. Elcona Homes Corp., 76-2474
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 8 Diciembre 1978
    ...of negligence since the negligence of the plaintiffs' driver would not be imputable to the passengers. Arrasmith v. Pennsylvania Railroad Co., 410 F.2d 1311, 1313 (6th Cir. 1969); Canterbury v. Pennsylvania Railroad Co., 158 Ohio St. 68, 107 N.E.2d 115, 120 The facts essentially admitted on......
  • Stoler v. Penn Central Transp. Co., 76-1558
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 18 Septiembre 1978
    ...precautions beyond those imposed by statute, if conditions at the crossing are sufficiently dangerous. See Arrasmith v. Pennsylvania Railroad, 410 F.2d 1311 (6th Cir. 1969); Hood v. New York, Chicago & St. Louis R. Co., 166 Ohio St. 529, 144 N.E.2d 104, 106 (1957); Stormont v. New York Cent......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT