Chesapeake & O. Ry. Co. v. Steele

• Decision Date: 04 January 1898
• Docket Number: 508,509.
• Citation: 84 F. 93
• Parties: CHESAPEAKE & O. RY. CO. v. STEELE (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

84 F. 93

CHESAPEAKE & O. RY. CO. v. STEELE (two cases).

Nos. 508, 509.

United States Court of Appeals, Sixth Circuit.

January 4, 1898

Richard and John Steele, brothers, were killed at a place where the public road crosses the Chesapeake & Ohio Railway at grade by a collision with a fast-moving passenger train, while driving in a buggy across the railroad track. The administratrix of each brought suit against the railroad company for an alleged negligent killing, and these two suits, dependent on the same facts, were tried by the same jury, who found for each plaintiff a separate verdict. Proper judgments were rendered thereon, from which separate writs of error have been sued out by the railroad company.

The issues upon which the case turned were whether the railroad company was guilty of negligence in respect to the precautions it had observed in relation to this crossing, so as to give persons crossing its track, at the time and place of the collision by which the deceased were killed, proper and reasonable warning of the approach of its train, and whether the deceased had been guilty of such contributory negligence as to prevent a recovery.

The facts necessary to be stated are these: The general course of the turnpike road on which the deceased were traveling was north and south, and that of the railroad east and west, and they crossed at nearly a right angle. The deceased were returning to their homes from the house of one Moore, who lived about one mile north of the railroad. They lived some distance south of the railroad, but were familiar with this crossing. The crossing was a particularly dangerous one, inasmuch as both the railroad and public road approached the crossing through considerable cuts, and a traveler going south on the highway could get no view of the track or of a train on the track after leaving a point about 200 feet north of this crossing until he reached a point 19 1/2 feet from the center of the track. Neither could a lookout upon an engine approaching from the east, as was the train with which the deceased collided, see any one approaching this crossing from the north until this point on the right of way, and on a level with the railroad cut was reached. If the traveler was driving, as was the case with the deceased, the horse would be about within striking distance of a passing train before persons in a vehicle would be clear of the obstructions to a view of a train approaching from the east. The deceased were young men, warmly wrapped up, the day being cold, snowy, and blustry. When they left Moore's house the sides of their buggy were strapped down, and their ears were protected, one by the side pieces of a cap drawn down, and the other by ear bobs fastened under the chin. The train with which they collided was a fast passenger train, traveling at a speed of full 50 miles per hour. There was a station whistling post 1,700 feet east of this crossing, where it was customary for crossing whistles to be blown for this crossing. The engineer upon the engine drawing the approaching train was the only eyewitness of the collision, the deceased being instantly killed. This witness in his evidence stated that when from 50 to 60 yards of this crossing he saw the head of the horse driven by deceased as soon as it passed a fence post at the point where the railroad cut intersected the turnpike cut. This was 19 1/2 feet from the center of the track. He next saw the buggy top as it came into view, and then the deceased sitting in the buggy, the sides of the buggy being then up, as he states. He says they seemed to be driving pretty fast, and to increase their speed as they crossed the track. The alarm was sounded and brakes applied, but all efforts to avoid a collision were in vain, the buggy being struck just as the horse passed uninjured across the track.

The negligence of the railroad company, if any, consisted in not giving reasonable notice of the approach of its train to this crossing. Section 773, Ky. St., requires every railroad company to erect a signal board at every grade crossing of a public highway. There was such a crossing post and sign at this crossing. There was also a whistling post 1,700 feet east of this crossing. By section 786 of same Statutes, the whistle is required to be sounded at least 50 rods before crossing a highway at grade, and that the whistle shall be sounded or bell rung continuously until such crossing shall be reached. The signal for a station is one long blast of the whistle, for a crossing two long and two short blasts, and the danger signal is a succession of short blasts.

The following is a summary of the evidence bearing upon the question as to whether a warning was given before reaching this crossing: Owens, the engineer, and Wyant, the fireman, testify that the whistle was sounded at the whistling post, and the bell rung from there to the crossing. Stephenson, the conductor, Stratton, the baggage master, and Judd, a brakeman, testify to a distinct recollection of hearing the crossing signal given before the alarm was sounded. H. L. Rowe, a passenger, testifies to a habit of noticing train signals, and to a positive recollection of hearing a crossing signal about one-half minute before an alarm whistle. W. C. Payne, an express company route agent and a passenger on this train, testifies positively to a similar recollection. He says he had a railroad connection to make at Lexington, and was watching the movement of the train with interest, hoping to have time in Lexington to get supper before his train should leave. James Stafford and wife, Sarah Stafford, who lived in the vicinity of the crossing, and knew the locality of the whistling post and crossing, both testify to hearing the crossing signal given, and shortly afterwards the alarm signals, and give a circumstance calculated to strengthen their recollection. W. H. Shoemaker, who lived 300 yards from the whistling post, also says he heard the crossing signal, followed in a short time by alarm signals, but gives no special reason for noticing or remembering. Opposed to this was the evidence of several witnesses, who either say that the signal was not given or that they did not hear it, though they had opportunity to hear it if it had been sounded. They may be summarized thus: L. S. Price, a passenger, heard the danger signal, but did not hear the crossing signal, and thinks he would have heard it if it had been given. A. J. Thomas, a passenger, heard danger signals, but did not notice crossing signal. Cannot say that it did not sound. J. O. Walker, a passenger whose attention was attracted by danger signal, did not hear crossing signal. Thinks it probable he would have heard it. Mrs. Worthington, a passenger, had her attention first attracted by the putting on of the air brakes, and about same time heard alarm whistle. Was noticing the progress of the train, and says she thought they were nearing Lexington, and did not hear any crossing signal. Will Ellis was the witness most relied on to prove the company's negligence. This witness lived near the whistling post, and was standing out in his yard when he heard the train give one long blast for Colby station,-- the station about three-quarters of a mile east of this crossing. Knew the crossing signal to be two or three long blasts. The train had not regularly whistled for this crossing, though they frequently did. Heard the train coming something over a quarter of a mile before it reached the whistling post. Saw it as soon as it came out of the cut between Colby's and whistling post. Was attracted by the rapidity with which the train was coming, and watched it until it passed whistling post, and was out of sight in the cut west of the post. He states very positively that the engine did not whistle at the post, nor until out of sight and near the crossing, and that the signal it then gave was three sharp quick blasts, which he says is the danger signal. This witness says that, standing where he stood, he could see the train for about one-third of the way down the cut towards crossing, and that it did not give any signal until clear out of his sight, and close to the crossing. On cross-examination he was asked if it whistled any more after he heard the three short, sharp blasts. He answered, 'Yes; it blew three short blasts, and then blew again; the second time, two or three times. ' Being again interrogated as follows, 'Then I understand you heard this engine blow three short blasts, and then there was a perceptible pause, and then it blew three short blasts again; that is the fact, is it?' he answered, 'Yes, sir.' 'Q. And after it blew those three short, sharp blasts a second time, it began to slow down? A. Yes, sir. Q. You could tell that it began to slow down? A. I could hear the air of it; the pressure and stop. ' On re-examination he was asked as follows: 'Q. In reference to the question of Judge H., you said you heard quick blasts of the whistle,-- some blasts on the track after the train got out of your sight? A. Yes, sir. Q. What kind of blasts? A. They were not quick together, like those others. ' Zack Mason, who at the time lived near this crossing, was in a lane near by and in sight of the crossing. Heard the alarm signals. Knew the difference between crossing and alarm signals. Did not hear any signal for the crossing. If it had blown at the whistling post, says he 'would have heard it.' This was the whole of the evidence upon the matter of signals on approaching this crossing.

John T. Shelby and Humphrey & Davie, for plaintiff in error.

Bronson & Allen and Morton & Darnall, for defendants in error.

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

LURTON Circuit Judge, after making the foregoing statement of facts .

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