Carter v. Pennsylvania R. Co.
| Decision Date | 21 February 1949 |
| Docket Number | No. 10733.,10733. |
| Citation | 172 F.2d 521 |
| Parties | CARTER v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Alex S. Dombey, of Columbus, Ohio (Herbert & Dombey, of Columbus, Ohio, on the brief) for appellant.
Hugh H. Altick, of Dayton, Ohio (Matthews & Altick, of Dayton, Ohio, on the brief), for appellee.
Before SIMONS, MARTIN and MILLER, Circuit Judges.
Appellant filed this action to recover damages for the death of the decedent Margie Carter, who, while riding as a passenger in an automobile, was killed in a highway crossing accident at Roxanna, Ohio. At the close of all the evidence, the District Judge directed a verdict for the appellee, from which ruling this appeal was taken.
The District Judge in directing the verdict made extended remarks to the jury reviewing the evidence and carefully explaining to it and to counsel his reasons for so ruling. In his opinion, the evidence showed that the accident was the sole result of the negligence of the driver of the automobile and failed to show any negligence on the part of the appellee. We agree with his analysis of the evidence and with the ruling.
As pointed out by the District Judge, the so-called Scintilla Rule, which formerly prevailed in Ohio, is no longer the rule in that State. Hamden Lodge v. Ohio Fuel Gas Company, 127 Ohio St. 469, 189 N.E. 246.
The evidence completely failed to support the allegation in the complaint that the appellee maintained its track system approximately four feet above the level of the public roadway, causing an abrupt rise in the roadway at the point, or that the roadway at the point of crossing contained holes and was not in good repair. In any event, there was no evidence that such a condition, even if it existed, was a proximate cause of the accident. Baltimore & Ohio Rd. Co. v. Reeves, 6 Cir., 10 F.2d 329.
The evidence was not sufficient to take the case to the jury on the issue of excessive speed of the train. Under Ohio law, in the absence of a statute regulating the rate of speed of railroad trains, a train is not limited as to speed when traveling in the open country, and safety is secured to persons at public crossings by the observance of the statutory signals. New York, Chicago & St. Louis Railroad Co. v. Kistler, 66 Ohio St. 326, 64 N.E. 130; Baltimore & Ohio Rd. Co. v. Reeves, supra. The crossing, a little to the west of Roxanna, Ohio, an unincorporated village of only four homes with no railroad depot, was correctly classified by the District Judge as a crossing in the open country.
There was substantial uncontradicted testimony that the statutory signals were given. Although an attempt was made to show the contrary, appellant's evidence on this issue was merely to the effect that certain witnesses did not hear the whistle or the bell. But such witnesses were not listening for the signals or were not in...
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