Brommer v. Pennsylvania R. Co.

• Decision Date: 10 June 1910
• Docket Number: 5,6,4.
• Citation: 179 F. 577
• Parties: BROMMER v. PENNSYLVANIA R. CO. PENNSYLVANIA R. CO. v. HENDERSON. SAME v. BLOCKSON.
• Court: U.S. Court of Appeals — Third Circuit

179 F. 577

BROMMER v. PENNSYLVANIA R. CO. PENNSYLVANIA R. CO. v. HENDERSON. SAME v. BLOCKSON.

Nos. 6, 5, 4.

United States Court of Appeals, Third Circuit.

June 10, 1910

Wescott & Wescott, for plaintiffs.

J. H Gaskill and T. L. Gaskill, for defendnat.

Before BUFFINGTON and LANNING, Circuit Judges, and ARCHBALD District judge.

BUFFINGTON Circuit Judge.

This opinion deals with three cases tried together in the lower court and so argued in this. One Brommer was driving his automobile over the Westfield avenue grade crossing in Camden, N.J., of the Pennsylvania Railroad Company, when it collided with a train. In the automobile were Mr. and Mrs Henderson and Mrs. Blockson, all of whom Brommer had invited to ride with him. Mrs. Henderson was killed and the other three occupants injured. These three brought suits. In the trial the court below held Brommer guilty of contributory negligence and directed a verdict against him. Verdicts and judgments were recovered by Henderson and Mrs. Blockson. To the entry of the judgment against him Brommer sued out a writ, and to the judgment entered against it in favor of Henderson and Mrs. Blockson the railroad sued out writs also.

We turn out attention first to the case of Brommer. A study of the entire testimony thereof and the fact that the tire marks on the ground, noted immediately after the accident, showed a deep swerve made by the automobile at the crossing, leaves us under the strong impression that Brommer attempted to make a flying dash over this crossing at a high rate of speed, and that this was the cause of the accident. We must, however dispose of the case on the evidence given on the plaintiff's side, and on that alone we are clear the court below was right in holding Brommer guilty of contributory negligence. The crossing in question was a grade street one in the city of Camden, and Brommer had no previous knowledge of the approaches thereto. He came in sight of it when he passed over an elevation on Westfield avenue 170 feet back, and from there the avenue sloped to the crossing, to the sides thereof. The track, however, was shut out by hedges and house on either side of the avenue from his sight.

Henderson, a nephew of the plaintiff Henderson, who was called by plaintiff to prove the location, testified, in answer to the court's question:

'You could not see a train coming the way this train was coming until you got within 40 feet of the track.'

McMullen, called by plaintiff for the same purpose, testified:

'As you approached the railroad track, how far down could you see on the left? A. I made no measurements. I should say that probably 30 feet from the railroad track you could see them for some distance; that is, down the track. Q. About what distance? A. Within about 30 feet of the railroad track, probably 500 or 600 feet, or maybe more. I don't know; I did not measure it.'

And, as summed up by Brommer's counsel, 'the evidence on both sides showed obstacles to vision up to within 30 or 40 feet of the track. ' Actual measurements and photographs testified to by defendant's witnesses show that at a point 30 feet back from the track there was a clear view to the left down the track for 1,400 feet. But taking the estimate made in plaintiff's proofs, there was a view point within 30 or 40 feet of the track for 500 or 600 feet.

Now, what was the duty of the driver of an automobile approaching a railroad crossing under such conditions? The question is, in a way, new, and we may therefore repeat in part what this court said in New York Central Co. v. Maidment, 168 F. 23, 93 C.C.A. 415 (21 L.R.A. (N.S.) 794):

'With the coming into use of the automobile, new questions as to reciprocal rights and duties of the public and that vehicle have and will continue to arise. At no place are those relations more important than at the grade crossings of railroads. The main consideration hitherto with reference to such crossings has been the danger to those crossing. A ponderous, swiftly moving locomotive, followed by a heavy train, is subject to slight danger by a crossing foot passenger, or a span of horses and a vehicle; but, when the passing vehicle is a ponderous steel structure, it threatens, not only the safety of its own occupants, but also those on the colliding train. And when to the perfect control of such a machine is added the factor of high speed, the temptation to dash over a track at terrific speed, makes the automobile unless carefully controlled, a new and grave element of crossing danger. On the other hand, when properly controlled, this powerful machine possesses capabilities contributing to safety. When a driver of horses attempts to make a crossing and is suddenly confronted by a train, difficulties face him to which the automobile is not subject. He cannot drive close to the track or stop there, without risk of his horses frightening, shying, or overturning his vehicle. He cannot well leave his horse standing, and if he goes forward to the track to get an unobstructed view and look for coming trains he might have to lead his horse or team with him. These precautions the automobile driver can take, carefully and deliberately, and without the nervousness communicated by a frightened horse. It will thus be seen an automobile driver has the opportunity, if the situation is one of uncertainty, to settle that uncertainty on the side of safety, with less inconvenience, no danger, and more surely than the driver of a horse. Such being the case, the law, both from the standpoint of his own safety and the menace his machine is to the safety of others, should, in meeting these new conditions, rigidly hold the automobile driver to such reasonable care and precaution as go to his own safety and that of the traveling public. If the law demands such care, and those crossing make such care, and not chance, their protection, the possibilities of automobile crossings accidents will be minimized.' Now, the plaintiff, by his own showing, had a vantage point 30 or 40 feet from the track where he could have stopped and seen a train at least 500 feet away. And it is equally clear that, if he had stopped and looked, this accident would not have happened. In the Maidment Case, supra, we said:

'The duty of an automobile driver approaching tracks, where there is restricted vision, to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty.'

This rule is conducive to safety, and observation and experience have deepened our conviction of its soundness. We therefore adhere to it and now restate it, and the court below was clearly right in holding it was conclusive of this case. Here, as there, the driver of the machine, when stopping, looking, and listening, would have prevented the accident, made chance, not stopping, the guaranty of his safety. It will not avail to say he looked and listened as he approached the crossing, and therefore there was no call to stop, for it is manifest either that he was going at such high rate of speed as to necessitate a deep swerve to avoid striking the flagman, or if he was approaching at the slow, two mile an hour rate, his witness says he was, he did not look, for if he had he would have seen this train 500 feet up the track, and with his machine under control, as the witness said it was, he would have stopped. 'If a traveler,' says Wharton's Law of Negligence, quoted with approval in Pennsylvania v. Righter, 42 N.J.Law, 186, 'by looking along the road, could have seen an approaching train in time to escape, it will be inferred, in case of collision, that he did not look, or, looking, did not heed what he saw. ' To the same effect are authorities cited in Elliott on Railroads, Sec. 1165. And the presumption of the law that he did not look when he came to this 30-foot vantage point is confirmed by the proof he produced. Helen Waters, who was about 100 feet from the crossing and saw the automobile coming, says that Brommer was about 15 feet from the track when he rose up on his seat and looked both ways. Mrs. Mowitz, another witness of plaintiff, was near the crossing and saw the automobile coming up to it. She shouted a warning just before it crossed. Her testimony, in explanation of why she did not do so sooner, clearly shows that she recognized the prudent and natural course was for Brommer to stop. Her testimony was:

'Q. Why was it, Mrs. Mowitz, that you did not holler when you saw the automobile going right up

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