Begert v. Payne

• Decision Date: 19 July 1921
• Docket Number: 3496.
• Parties: BEGERT v. PAYNE, Liquidating Agent.
• Court: U.S. Court of Appeals — Sixth Circuit

274 F. 784

BEGERT v. PAYNE, Liquidating Agent.

No. 3496.

United States Court of Appeals, Sixth Circuit.

July 19, 1921

[Copyrighted Material Omitted]

R. B Newcomb, of Cleveland, Ohio (Newcomb, Newcomb & Nord, of Cleveland, Ohio, on the brief), for plaintiff in error.

Thomas M. Kirby, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

The automobile, in which plaintiff in error (hereinafter called plaintiff) was riding on the Lincoln Highway, through the village of East Union, Ohio, was struck at a crossing by a passenger train of the Pennsylvania Railroad; plaintiff receiving serious personal injuries. The two other occupants of the automobile were killed. The highway at the point in question runs east and west; the railroad, substantially north and south. The automobile was traveling east; the colliding train came from the north. The automobile (left-hand drive) was being driven by one Kraus plaintiff's employer, who alone occupied the front seat. The right-hand side of the back seat was occupied by plaintiff; the left-hand side by the driver's mother, who was thus on the same side of the approaching train as was the driver. All three were bound for Orrville; the driver and plaintiff each on a separate and personal errand. The side curtains were on, but plaintiff testified that the 'view to look out through the curtains (apparently through a 'sort of isinglass') was not interrupted.'

At the point of collision the highway was about 55 feet wide, having in its center a brick pavement 11 1/2 feet wide. There were two tracks, the westerly being a side track, extending both north and south of the highway; the easterly being the main track. The automobile thus had to cross the side track before reaching the main track, on which the collision occurred. A few feet west of the side track, and a short distance north of the highway, was an elevator. At the time of the collision there was on the side track a string of freight cars extending north from a point within the 55-foot roadway and only a few feet north from its paved portion. There was testimony that these cars filled practically the entire length of the side track to the north, estimated by some of the witnesses as from 300 to 500 feet. There were also freight cars on the side track south of the highway, as well as a warehouse and coal bin. A little west of the elevator (and thus on the north side of the highway) was a dwelling house, and farther west (about 15 rods from the crossing) was a store. Beyond the freight cars to the north, and several hundred feet from the crossing, was a piece of woods. The track ran practically straight for about a quarter of a mile north of the crossing, and could be seen at intervals during a distance of a quarter of a mile by one approaching on the highway from the west, but only at intervals, by reason of the woods, the freight cars, the elevator, the dwelling house, and the store.

At the southeast intersection of the highway and the railroad, and opposite the box cars on the south part of the side track, was a passenger station, with a platform extending to the south line of the highway. There was testimony that had there been no cars on the side track, one driving east on the highway, when on a line even with the side of the elevator, could see 50 to 100 feet to the north on the main track, and beyond the point where the elevator would obstruct the view could see north on the main track to the woods, but that with the box cars upon the side track the nearest point at which a view of the main track to the north for a considerable distance could be had would be perhaps a quarter of a mile from the crossing, and that one could not see around the end of the nearest box car until the front wheels of the automobile were 5 to 10 feet from the main track.

The grounds of negligence relied upon were: (a) That the train was operated without sounding the whistle or ringing the bell, or giving any warning of the train's approach to the crossing; (b) negligently placing the box cars upon the side track and in the highway, thereby blocking the view of the approaching train from the automobile; (c) that the engine crew approached the highway crossing without having the train under proper control, when it knew that the view of the train was blocked by buildings and box cars standing upon the side track; (d) running over the crossing without signal or warning of approach.

At the close of the testimony the trial judge directed verdict for defendant, upon the ground that no question of fact for the jury was presented respecting defendant's alleged negligence; the court stating that in his opinion there was no substantial conflict in the evidence over the proposition that both the whistle and bell were sounded, and, in effect, that if the presence of the box cars in the highway called for additional care in operating the train, the evidence showed the exercise of additional care in the sounding of whistle shortly before the crossing was reached. The court laid stress upon the testimony that a volunteer, who apparently saw the train coming, tried to give warning of its approach. The court further said that according to the 'almost undisputed testimony' the automobile approached the crossing at a higher rate of speed than that of the train.

We think the trial court clearly erred in directing verdict for defendant. It is a commonplace that, upon a motion by a defendant for instructed verdict, it is the duty of the trial judge to give the plaintiff the benefit of every fair inference which might reasonably be drawn by the jury from the evidence, only guided by sound processes of reasoning and applicable principles of law. The credibility of witnesses is peculiarly for the jury. If the plaintiff produced material evidence, sufficient, if believed and uncontradicted, to warrant a verdict, no amount of contradictory evidence would authorize the trial judge to take the question of its effect and weight from the jury (Rochford v. Pennsylvania Co. (C.C.A. 6) 174 F. 81, 83-84, 98 C.C.A. 105); this rule being subject (so far as material here) only to the limitation that testimony contrary to reason or contrary to natural and physical laws cannot support a verdict. Rochford v. Penn. Co., supra; Penn. Co. v. Whitney (C.C.A. 6) 169 F. 572, 576, 95 C.C.A. 70. A verdict cannot properly be directed for defendant merely because the trial judge feels that, should the jury find in the plaintiff's favor, he would regard it his duty, in the exercise of a sound judicial discretion, to set the verdict aside. The test is whether there is such an utter absence of substantial evidence as to make it his duty, as matter of law, to set the verdict aside independently of the exercise of discretion, and without reference to how greatly the court may think the conflict in testimony to preponderate in favor of defendant. We deem it unnecessary to do more than refer to the decisions of this court. Nelson v. Ohio Cultivator Co., 188 F. 620, 629, 112 C.C.A. 394; McIntyre v. Modern Woodmen, 200 F. 1, 121 C.C.A. 1; Hettler Lumber Co. v. Olds, 221 F. 612, 615, 137 C.C.A. 336; Richards v. Mulford, 236 F. 677, 679, 150 C.C.A. 9.

Plaintiff seems now to concede that the whistle was blown about 1,400 feet from the crossing, and again for the station stop, but insists that it was not again sounded within 700 feet of the station. There was substantial conflict in testimony whether the bell was ringing as the train approached the crossing. While there was abundant testimony that it was ringing, not only did plaintiff testify that she was looking and listening from the time the store was passed until the collision, and that she heard no bell or whistle and saw no engine or train ^[1] but other witnesses, who were in position to have heard the bell, if it had been ringing, testified that they were listening for it, but failed to hear it. Others still who testified to hearing the bell, were confronted with written statements to the effect that they heard no bell. Again, while both the engineer and fireman testified that the bell (which was operable automatically) was ringing for a considerable time before and up to the time of the collision, and the engineer testified to turning on the automatic ringer at the whistling post,...