Baltimore & O.R. Co. v. O'Neill
| Decision Date | 19 April 1911 |
| Docket Number | 2,099. |
| Citation | 186 F. 13 |
| Court | U.S. Court of Appeals — Sixth Circuit |
| Parties | BALTIMORE & O.R. CO. v. O'NEILL. |
Kline Tolles & Morley and A. E. Clevenger, for plaintiff in error.
D. F Anderson, for defendant in error.
Before SEVERENS and KNAPPEN, Circuit Judges, and SATER, District Judge.
The defendant in error (hereinafter called the 'plaintiff') was struck and injured by a freight engine while walking across defendant's railroad track at the Clay street crossing in Niles, Ohio. Several grounds of negligence were charged, the most prominent being the alleged lack of headlight upon the engine, the failure to give warning of the train's approach by bell or whistle, and the fact that the electric gong at the Clay street crossing was out of commission. The accident happened at about 9:30 o'clock in the evening. There was evidence that the night was dark and cloudy, the electric lamp at the Clay street crossing was not burning, and the electric gong at that crossing was out of commission. The engine in question was the foremost of two engines hauling a long freight train.
The plaintiff testified that about six feet before reaching the crossing he stopped, looked and listened, saw and heard no train, passed on, and just as he was stepping over the further rail was struck by the engine. There was testimony that the engines were 'drifting' (the steam being shut off), and were moving at a rate variously estimated at from 5 to 15 or 20 miles an hour; the evidence preponderating in favor of the lower speed. There was also direct testimony that there was no headlight on the engine, and that no whistle or bell was sounded as the crossing was approached. There was a straight, clear track for about 1,300 feet east of Clay street.
At the close of the testimony the defendant moved for direction of verdict in its favor, on the ground that the evidence showed conclusively, as a matter of law, that the plaintiff was contributorily negligent. The court, in an unexceptionable charge, submitted the case to the jury, and instructed them that if the headlight was burning on the engine plaintiff was negligent, and could not recover. The denial of the motion for directed verdict is the only ground urged for reversal.
It is contended: First, that there was not sufficient evidence to create a conflict upon the issue that the headlight was not burning; and, second, that even if the headlight were not burning, the physical and conceded facts conclusively show that the plaintiff was contributorily negligent. We will consider these two propositions in the order stated.
The entire crew of the freight train testified that the headlight was burning, and defendant contends that the testimony to the contrary is merely negative, and so cannot be allowed to override the positive testimony of the trainmen. It is unnecessary to refer to the authorities cited by defendant upon this proposition, for the evidence that there was no headlight is not, in our opinion, merely negative. Two witnesses seated upon a porch which faced the railroad track and only about 40 feet distant therefrom, and at the crossing in question, testified that there was no headlight on the engine, and that the train was not seen or heard by them until after both engines had passed the porch. The record shows that the railroad track in question was regularly used by pedestrians. Two witnesses, a man and wife, who came upon the track at Olive street, 250 feet east of Clay street, testified that they both looked and listened for the train, but saw and heard none, and that no headlight was burning. Both were looking and listening to avoid danger in walking upon the track. One of these witnesses testified:
These witnesses, who were walking toward Clay street, were overtaken by the train soon after leaving Olive street. Another witness upon the track between Clay and Olive streets, and walking...
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