Baird v. Cincinnati, New Orleans & Texas Pacific Railway Co.

• Decision Date: 04 April 1963
• Docket Number: No. 14913.,14913.
• Citation: 315 F.2d 717
• Parties: Harrison BAIRD, Plaintiff-Appellee, v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY CO., Inc., Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

315 F.2d 717 (1963)

Harrison BAIRD, Plaintiff-Appellee, v. CINCINNATI, NEW ORLEANS & TEXAS PACIFIC RAILWAY CO., Inc., Defendant-Appellant.

No. 14913.

United States Court of Appeals Sixth Circuit.

April 4, 1963.

James F. Clay, Danville, Ky. (Bradley & Bradley, Georgetown, Ky., on the brief), for appellant.

Pierce Lively, Danville, Ky., for appellee.

Before CECIL, Chief Judge, and MILLER and O'SULLIVAN, Circuit Judges.

O'SULLIVAN, Circuit Judge.

Plaintiff-appellee, Harrison Baird, while driving an automobile, was struck by the engine of defendant-appellant's freight train at a crossing in Lincoln County, Kentucky. For his personal injuries and damage to his automobile, he recovered a judgment of $11,297.20, entered upon a jury verdict. On this appeal, the appellant railroad asks reversal upon the single ground that plaintiff was guilty of contributory negligence as a matter of law. Its motion for directed verdict on that ground was denied. Jurisdiction is based upon diversity of citizenship and Kentucky law controls.

The crossing in question is made by the railroad's double main line tracks, running north and south, and a country road which runs east and west. The main line tracks come up to the crossing through what was described as a "cut" with a bank of varying height along the east side of the right of way. The road, as it approaches the crossing from the east "drops off" from a hard surfaced portion thereof and goes "down" to the crossing. The train which collided with plaintiff's vehicle was coming north through the cut at a speed which the jury could find to have been 60 miles an hour. Plaintiff was proceeding westerly into the crossing at 5 miles an hour. The right front corner of the defendant's engine struck the left front fender of plaintiff's automobile. A spur track, paralleling the main line track, crosses the road at a point 69½ feet east of the easterly main line track. The only dimensional description of the degree of drop of the road was that the top of the rail of the spur track was 1½ feet higher than the top of the rails of the main line at the crossing. That the road may have actually been lower than the main line tracks somewhere between them and the spur track could be inferred from plaintiff's testimony.¹ Neither plaintiff nor defendant provided any more accurate information as to the grade of the road in relation to the main line tracks between the place where it "dropped off" the hard surface and the intersection with such tracks. Accurate information in this regard would have aided the jury as well as the District Judge and this Court in considering the question of contributory negligence. Critical to the determination of whether plaintiff was, as a matter of law, guilty of contributory negligence is the opportunity plaintiff had to see the approach of defendant's train as he came down to, and into, the crossing.

The accident occurred in the early daylight of March 7, 1960. It was snowing and windy. The road was "a solid sheet of ice." Plaintiff testified that as he approached the crossing, there was a string of boxcars standing on the spur track north of the road (to plaintiff's right). To the west of these, also north of the road, were a house trailer and a small building, the latter being 23½ feet east of the east track of the main line. These objects on the north side of the road, plaintiff said, obscured his view to his right and required him to give special attention in that direction, at least until he had passed them. What he saw to his left and what, according to him, was his ability to see to his left, would permit an inference that he had to be substantially "up to" the crossing before a satisfactory view could be had.² Other witnesses corroborated plaintiff's testimony that a motorist had no adequate view of the track to the south of the crossing until he was on the edge of the crossing.³

From the foregoing testimony, however lacking in preciseness, we think that a jury could find that the plaintiff's view to his left was in some degree impaired until the front of his car was close to the track upon which he was struck. He testified that he first saw the train when it was a few feet from him and substantially at the instant when it struck him. Having in mind that the train was going 60 miles an hour, it cannot be said that reasonable minds could conclude only that plaintiff must have, or should have, seen the train on the occasions when he looked preparatory to entering the crossing.

There was conflict in the evidence as to whether a whistle was blown or a bell rung by defendant's train crew. While some of plaintiff's proof on this subject was negative evidence, there was testimony by one or more witnesses that, at their proximity to the scene, they could have heard such signals, if given, and that none were heard. The plaintiff, alert to his approach to the crossing, testified that he heard no signals. Whether the required signals were given was a jury question. Lousiville & Nashville Railroad Co. v. Ratliff's Adm'r, 260 Ky. 380, 386, 85 S.W.2d 1006; Green, Adm'r v. Baltimore & Ohio Railroad Company, 299 F.2d 837, 839 (C.A. 6, 1962). Defendant concedes that the signals were not given for the required distance of 50 rods south of the crossing (K.R.S. § 277.190) and does not question but that the jury could find the defendant guilty of negligence proximately a cause of plaintiff's injuries. In the testimony of plaintiff and his witnesses there were some conflicts and inconsistencies and some statements that could support a finding that plaintiff should have seen the train for a substantial time and distance prior to coming onto the crossing. Two witnesses much farther to the east of the crossing saw the train approaching it, but they were on higher ground than was the plaintiff. It was for the jury to resolve any conflicts and inconsistencies in this evidence and make its finding of the fact thereon. Dickerson v. Shepard Warner Elevator Co., 287 F.2d 255, 259 (C.A. 6, 1961); Bathory v. Procter & Gamble Distributing Co., 306 F.2d 22, 25 (C.A. 6, 1962).

Defendant's position is that its evidence was so positive and irrefutable on the question of plaintiff's view of the crossing that plaintiff's evidence, above reviewed, was overcome and could not permit a jury to exonerate plaintiff from defendant's charge of contributory negligence. We mention, preliminarily, the familiar rule that considering the question of directing a verdict on the ground of contributory negligence, the evidence and inferences justifiably drawn therefrom will be viewed in the light most favorable to plaintiff. Hinton v. Dixie Ohio Exp. Co., 188 F.2d 121, 124 (C.A. 6, 1951); Honaker v. Crutchfield, 247 Ky. 495, 501, 57 S.W.2d 502. Likewise, contributory negligence is an affirmative defense and the burden of proving it lies with the defendant; Rule 8.03, Ky.R.C.P.

In support of its contention, defendant relies on some photographs taken at the scene and some engineer's measurements. The engineer gave figures as to the height of the bank along the east side of defendant's right of way. At 100 feet south of the crossing, the top of the bank is two feet above the top of the rail of the nearest track. At 200 feet, such dimension is 2½ feet; at 400 feet, it is 7.9 feet; at 500 feet, it is 8.6 feet; at 600 feet, it is 7.3 feet and at 700 feet, it is 11 feet. At 745 feet south of the crossing, where a bridge or overpass crosses the tracks, the height of the bank above the rails is "something over 11 feet, but less than 22 feet." Defendant's diesel engine which pulled the train involved is 15 feet 3 inches high. Defendant's engineer further testified that the top of the rail of the spur track (69½ feet east of the main line) is 1½ feet above the top of the rail of the nearest main line track. Defendant claims that such figures establish beyond dispute that plaintiff by the exercise of ordinary care, could and should have seen defendant's train at all times during his journey from the spur track to the main line. We cannot agree. The engineer's findings did not include any information as to the grade of the road between the spur track and the main line, in which distance there was evidence that plaintiff went down "into a hole." Certainly it was permissible for the jury to find that the grade of the road between the spur and the main track was such as to increase the bank's impairment of the view beyond what the engineer's figures disclosed. From the engineer's figures, it cannot be said that when plaintiff reached the spur track the train was necessarily within the 734 feet between the crossing and the overpass. It was going 60 miles per hour or 88 feet per second; the plaintiff was going about five miles per hour. The meager engineering data provided, and the lack of information as to the grade of the road forbids an unimpeachable calculation as to when, if ever, the train came into plaintiff's view prior to the time the front of his vehicle arrived at the east main line track. Having in mind defendant's burden of proof, if some measurement or calculation essential to defendant's theory that plaintiff was contributorily negligent is missing, the absence of such essential must be charged to defendant. McFall v. Tooke, 308 F.2d 617, 621 (C.A. 6, 1962).

Defendant's photographs, with the distortions inherent in them, likewise do not, in our opinion, destroy the verbal testimony of plaintiff and his witnesses that no practical view of the oncoming train was available to plaintiff prior to the immediate imminence of collision. While these pictures might, indeed, be persuasive to a finder of the facts, it was for the jury to weigh their probative value against the opposing proofs. The pictures also disclose some amount of brush (leafless at the time) on top of the bank. This brush appears to be of varying height and density along the bank and whether, and how much, such brush added to the bank's...