Blount v. Grand Trunk Ry. Co.

• Decision Date: 03 April 1894
• Docket Number: 121.
• Citation: 61 F. 375
• Parties: BLOUNT v. GRAND TRUNK RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

61 F. 375

BLOUNT v. GRAND TRUNK RY. CO.

No. 121.

United States Court of Appeals, Sixth Circuit.

April 3, 1894

Edwin C. Bolton (Moore & Moore, of counsel) for plaintiff in error.

L. C Stanley and E. W. Meddaugh, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and BARR, District Judge.

TAFT Circuit Judge.

This is a writ of error to reverse a judgment of the circuit court of United States for the eastern district of Michigan. The action below was by Bessie Blount, as the administratrix of her husband, George W. Blount, against the Grant Trunk Railway Company, to recover damages for his death. He was killed by a train of the railway company on the night of August 10, 1891. After all the evidence on both sides had been submitted, the trial judge directed the jury to return a verdict for the defendant on the ground that the plaintiff's intestate was conclusively shown to have been guilty of contributory negligence. The sole question for our consideration is whether, on the evidence in the case, this was a proper instruction.

The accident occurred at Second avenue, in the city of Detroit. Second avenue runs north and south, and was crossed at right angles by the tracks of three different railways at the same place. The north track was that of the Grand Trunk Railway the middle track that of the Lake Shore Railway, and the southern track that of the Michigan Central Railway. These three companies, as required by the law of Michigan, jointly maintained at the crossing gates on the north and south side of the tracks, and employed a man to raise and lower than as the passing of trains might require. The deceased was a watchman in a factory situate within a few hundred feet of the crossing, and was well acquainted with it. About 9 o'clock in the evening on the date before mentioned, he left his factory to visit one Hoy, who lived on the north side of the railway crossing, and on the west side of Second avenue, in a house distant about 60 feet from the north gate. He found Hoy sitting on the south porch of his house, and after a talk of some 10 or 15 minutes' duration, Blount started back to his factory to resume his duties. He walked from Hoy's gate to the middle of the Grant Trunk track without stopping. He was there struck by a regular transfer and suburban passenger train of the Grand Trunk Company, drawn by an engine running with its tender in front. He was instantly killed. There was evidence to show that the bell of the engine did not ring and that there was no headlight upon the engine, and that the train was running at a speed of 15 or 20 miles an hour,-- very much faster than was permitted by the ordinances of the city of Detroit. The night was a starlit, clear night. From Hoy's porch and front gate, and from every point between the gate and the crossing, the track of the Grand Trunk Railway was visible for upwards of 2 blocks, or 800 feet. There were no obstructions of any kind. On the south side of the railway crossing, and to the east of it, stood a large ice house, which, by reason of an electric light tower some 2 blocks away, cast a shadow over the crossing, and for perhaps 75 or 100 feet to the east of the crossing. Blount's sight and hearing were neither of them defective. The only person who saw Blount at the time of the accident was a witness named Snelling, introduced by the plaintiff. He was walking on the same side of the street as Blount, and in the same direction, but about 75 feet behind him. Snelling testified on cross-examination as follows:

'Q. This man (i.e. Blount) walked straight from the gate to the railroad tracks? A. Yes, sir. Q. And the train hit him right there in the middle of the track? A. Yes, sir. Q. Was he looking down the sidewalk most of the time? A. He was looking ahead of him, I expect. Q. He didn't look up to see either way if the train was coming? A. It was rather dark, and I could not say whether he turned his head or not. I didn't watch him close enough. * * * Q. This man didn't see the train until it actually struck him; is that the way it was? A. Yes, sir. Q. You saw him make no move to get out of the way? A. He didn't have time. Q. Did you think he was in danger before he was struck? A. I didn't think he was; no. Q. Did you think he was going to get over ahead of the train? A. I expected he would. I thought probably he noticed the train himself. Q. What made you think he noticed the train? A. Because I noticed it. It wasn't off very far, and I thought he noticed it too. Q. You thought he ought to have noticed it? A. I should think he ought to. Q. You didn't see him stop anywhere? A. No, sir. Q. Until he was struck? A. No, sir. Q. And you didn't see him look in either direction? A. He was going ahead. Q. Did he seem to be in a hurry? Was he running? A. No, he was not running. Q. What did you see of the train. How did you come to see it? A. I was coming along, it was right close by, and I looked that way, and I seen it. Q. You saw the lights? A. I saw them on the train. Q. Didn't you see the other lights? A. I saw the lights in the coach. Q. The coach was lighted? A. Yes, sir; it had a light. Q. Did you hear the train coming? A. I didn't hear it until it was right near there. Q. You could have seen it way beyond there, if you happened to look? A. Not a great ways. Q. There is nothing to prevent that view, however? A. Not in the daytime. In the dark you could not see. Q. You could see those coach lights up to Cass Ave.? (a block away from Second Ave.) A. Oh, yes; might there. Q. From where you were? A. Yes, sir.'

Direct Examination: 'Q. When did you first see the train that struck him? A. It was just across the road.'

The witness testified that the gate was not lowered at the time the train passed, and that the red lantern which was suspended on the gate was up, and not down, when Blount stepped upon the track. The witness was contradicted as to the position of the gates by five other witnesses, who had much better opportunities for knowing, and two of them were wholly disinterested. For the purpose of this discussion, however, Snelling's statement that the gates were up must be accepted as true.

On these facts, can reasonable men differ as to the negligence of Blount? We think not. If we may assume that Blount was walking at the rate of 3 miles an hour, and the train was running at the rate of 15 miles an hour,-- an assumption decidedly in favor of the plaintiff,-- the train was moving at the rate of speed five times that of Blount. Therefore when Blount...