Central R. Co. of New Jersey v. Hudson

• Decision Date: 13 November 1913
• Docket Number: 1,750.
• Citation: 209 F. 176
• Parties: CENTRAL R. CO. OF NEW JERSEY v. HUDSON.
• Court: U.S. Court of Appeals — Third Circuit

209 F. 176

CENTRAL R. CO. OF NEW JERSEY v. HUDSON.

No. 1,750.

United States Court of Appeals, Third Circuit.

November 13, 1913

A. G Dickson, of Philadelphia, Pa., for plaintiff in error.

George Demming, of Philadelphia, Pa. (Edgar W. Lank, of Philadelphia, Pa., on the brief), for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

GRAY Circuit Judge.

The plaintiff sued for injuries sustained near a grade crossing at South Bethlehem, Pennsylvania, on the evening of May 27 1912. Birch street, a somewhat narrow street in that city running in an easterly and westerly direction, crosses the tracks of the Reading Railway Company, which runs in a northerly and southerly direction. These tracks consisted of two main tracks and some sidings east and west of them, which also crossed Birch street. No one other than the plaintiff saw the accident itself, by which he was injured.

The plaintiff testifies that he was proceeding on the sidewalk of the southerly side of Birch street, from the easterly side of the railroad tracks towards the westerly side, and was struck by a box car that was coming in a southerly direction on a side track which was the first track he stepped upon in attempting to cross the railroad. This side track was used by the defendant company for its own purposes on that evening, as upon many previous evenings, presumably pursuant to an understanding for track privileges with the Reading Railway Company. The main lines of the Reading Railway cross Birch street between the sidings, east and west, referred to, and the siding on which the accident happened is the one which Birch street first crosses from east to west. The plaintiff testifies that when he stepped upon this track, he suddenly became aware of a box car moving in a southerly direction, so near that he was compelled to catch hold of it and endeavor to save himself, and was dragged some distance before he fell beneath the wheels and suffered the injuries complained of. He testifies that there was no light upon the box car, that no whistle was blown, no bell was ringing, and that it was coming at a high rate of speed.

There was testimony on behalf of the defendant that on the evening in question, at the time of the accident, defendant's shifting engine, with one box car ahead of it, was pushing the same in a southerly direction on this siding across Birch street; that the car was being pushed at a reasonably slow rate of from four to six or seven miles an hour; that the engine bell was continuously rung as it approached and went over the crossing of Birch street; that the conductor and brakeman were sitting on the top of the car nearest the engine, with a lantern. This was the testimony of the engineer, fireman, the conductor and the brakeman on the car, who stated positively that the bell was ringing as the crossing was approached, and that the safety gates were down as they made the crossing. There was also independent testimony from two witnesses, that the gates were down when the car was pushed over the siding; also from the gatekeeper in the employ of the Reading Railway Company, whose tower was on the opposite side of the railway.

There was the not unusual conflict of testimony as to the ringing of the bell, the speed of the train, and the gates being down. There was also circumstantial evidence tending to support the inference that the plaintiff had crossed, not from the pavement on the left hand or southerly side of Birch street, but from a point a number of feet to the south thereof, and not on the crossing. There was the testimony also of four witnesses who saw plaintiff as he came down Birch street toward the railway, and only a short distance therefrom, that he was behaving and staggering like a drunken man. The plaintiff denies that he was drunk, or that he had had more than two glasses of beer that evening. These witnesses testified, and the plaintiff also admitted, that when he came to the corner of Birch street and the railway, he turned to the left, around a large building situated on the corner and about five feet from the siding in question. These witnesses testified that they did not see him return, but the plaintiff testified that he did return to the sidewalk on Birch street before he attempted to cross the track. The point where he was found lying after his injuries was on this siding, about forty feet from the crossing.

The safety gates were owned and operated by the Reading Railway, and were used for the protection of this Birch street crossing, as to the movement of trains on all tracks crossing said street, and the defendant's testimony tended to show that they were so used on the night in question, and just before the accident, to protect those using the crossing from the box car and engine that were pushed southward on the siding, and in the movement of which the accident complained of occurred.

The case was submitted to the jury on the issues of the negligence of the defendant and of the contributory negligence of the plaintiff. The jury rendered a verdict in favor of the plaintiff, and to the judgment on this verdict this writ of error has been sued out by the defendant.

The assignments of error are confined to certain exceptions taken to the charge of the court in submitting the case to the jury. Though the assignments are numerous, covering in detached portions almost the whole charge, we will refer only to those which seem to us important by reason of their direct bearing on the questions of the negligence of the defendant and the contributory negligence of the plaintiff.

The gravamen of plaintiff's charge against the defendant was of course, its alleged negligence in the manner in which the shifting engine and box car made the crossing at Birch street. According to this charge, the negligence consisted of the alleged unreasonable high speed, the absence of any light on the box car, and failure to sound bell or whistle on approaching the crossing, or give other reasonable warning to those about to cross of the approach of the engine and car. It can hardly be said that there was any real conflict of testimony as to the speed of the train. All of those who were in a position to know and qualified to estimate the speed of a train testified to six or seven miles an hour. The only conflict with this, if conflict it be called, is the testimony of the plaintiff himself, who testified that the car, when it bore down upon him, was coming fast,-- how fast, he did not attempt to say. The question, however, was submitted to the jury, whether six or seven miles was a reasonable speed at which, under the circumstances, to make the crossing. So also the questions as to whether there was a light on the car,...