Cincinnati, N.O. & T.P. Ry. Co. v. Farra

• Decision Date: 05 February 1895
• Docket Number: 208.
• Citation: 66 F. 496
• Parties: CINCINNATI, N.O. & T.P. RY. CO. v. FARRA et al.
• Court: U.S. Court of Appeals — Sixth Circuit

66 F. 496

CINCINNATI, N.O. & T.P. RY. CO. v. FARRA et al.

No. 208.

United States Court of Appeals, Sixth Circuit.

February 5, 1895

The defendant in error Mrs. Maggie Farra, while driving across the tracks of the defendant railroad, at a public road crossing, came into collision with a rapidly moving passenger train, passing on said railroad, and received very serious injuries. She instituted suit for damages in the circuit court of Jessamine county, Ky., which was removed by the plaintiff in error to the United States circuit court for the district of Kentucky. Mrs. Farra's petition alleged that the collision was due to the negligence of the railroad company in failing to give proper signals when its train approached the public road crossing at which the injury was received, and in neglecting to keep its right of way free from obstructions impeding the view of travelers crossing the road. These allegations of negligence were controverted, and contributory negligence upon the part of Mrs. Farra was pleaded as a defense to her right of recovery. There was a jury, and verdict for $5,000 in favor of Mrs. Farra, and from the judgment thereon a writ of error was sued out by the plaintiff in error.

At the conclusion of the evidence offered by the plaintiff below the defendant moved for instructions to the jury to return a verdict for the defendant. This was overruled and exception taken. At the conclusion of all the evidence this motion was renewed, and again overruled, and exception reserved.

The evidence disclosed by the record tended to establish the following facts bearing upon the alleged contributory negligence of the defendant in error: Mrs. Farra, on the afternoon of September 4, 1892, was returning from a visit to a neighbor's. She was driving along a country road which intersects the railroad of the plaintiff in error at a grade crossing. She was in a two-seated vehicle, and was driving a kind, gentle horse. She had two small children with her,-- one a baby asleep upon her lap, the other a little girl seated next to her. All were on the back seat. Both the turnpike and the railroad approached the crossing through considerable cuts. Some 400 feet before reaching the crossing the turnpike begins a descent, which continues to the crossing. The grade of this turnpike appears to be about 12 feet to the 100 for the first 300 feet from the point where the descent began. The remainder of the road was upon a grade less than half so great. The railroad approaches the crossing from the north on a curve, through a deep cut, for perhaps 1,000 feet. The last point from which one traveling this turnpike could observe the railroad was 400 feet from the crossing, being the point at which the road began to descend the hill to the railroad. The railroad, from the beginning of the descent, was obstructed from the view of Mrs. Farra until within a few feet of the track. This was due to the effect of the cuts through this obscurity, the right of way had been suffered to grow up in undergrowth and rank weeds, so that one driving could not see to the right or left until the horse pulling the barouche was over the first rail. The side curtains of the carriage were up, and there was no obstacle to prevent her seeing whatever could be seen from her vehicle. From the time she started down the hill she was attentive to the situation. Being acquainted with the turnpike, and aware of the dangerous character of the crossing, she was watchful and careful. She says in her evidence: 'I was driving down the hill in a walk. My baby was asleep. The other little girl was on the other side of me. I was listening for the train. I knew it was a dangerous crossing. I had no view of the track until I got on the track. ' She says she then looked first to the south because at that hour no train was expected from the north. Seeing no train in that direction, she then looked the other way, and saw an engine approaching, and so near that there was no time to cross over or to withdraw. The engineer on this engine says that on approaching the crossing 'he saw a horse; the horse's mouth was open as though he was being pulled back'; and that he struck the horse before there was time to check up. Mrs. Farra says, though she approached the crossing in a walk and was listening, she heard no signals and did not hear the approach of the train. She was acquainted with the schedule of trains, and says no train was due from the north at that hour. The train which occasioned the catastrophe was a special passenger train from Cincinnati carrying several cars of excursionists en route to witness the Sullivan-Corbett fight. There was evidence tending to show that no signals were given on approaching this dangerous crossing, and that the train was moving at from 40 to 50 miles per hour.

The court refused the request made by the plaintiff in error for an instruction in these words: 'The jury is instructed that a railroad track is of itself notice of danger and a warning to persons approaching a railroad crossing to look out for trains running on the railroad, and that it is the duty of a person approaching a railroad crossing to make a vigilant use of his senses in looking for a train approaching the crossing on the railroad, and to use care commensurate with the character and apparent danger of the crossing in order to ascertain if a train is approaching a crossing on a railroad; and, if the view of the railroad is obscured by intervening objects, it is the duty of the traveler upon the highway, before going upon the railroad track, to stop and look and listen for an approaching train; and if such traveler, under such circumstances, fails to stop and look and listen, and without so doing goes upon the track and is injured by a train running on said railroad track, which injuries would not have been sustained except for the failure to stop and look and listen, then the jury must find for the defendant, even though the jury believes from the evidence that there was a failure by the employes operating the train to give notice by signals of the approaching train to the crossing.'

The court, after charging the jury fully upon the alleged negligence of the railway company, gave the following instruction in respect to the contributory negligence of the defendant in error: 'That was a public highway. She had the right to travel upon it and to cross this crossing, but she was under obligation,-- in duty bound,-- to the relative right which the company had of its right of way, to use care and prudence herself. She could not and cannot claim damage if she has herself been careless or imprudent in approaching and attempting to cross that right of way, and by that I mean such prudence and caution as reasonably careful persons would take under similar circumstances. Now, this crossing was although in the country, dangerous,-- dangerous because of the character of the public highway as well as the cut on the railroad, which highway is, as the evidence has it, rather a steep descent; somewhere between 7 and 8 feet descent, according to the evidence, to the 100 feet. The gentleman who testified said the last 100 feet before you came to the crossing is, I think he said, about 8 feet grade to the 100 feet. It was through a cut which was on a hillside, so that, according to the evidence, there is some contrariety. You, gentlemen, must consider that; it is not for the court. After they left the top there was no means of seeing an approaching train from this until very near the crossing. That was not because of the nature of the railway so much as the nature of the highway, but the two combined interfered with the vision, so that any one approaching it, after they had left the top of the hill,-- according to the witnesses, some 100 or 150 yards from the top of the hill,-- had no means of seeing an approaching train from around the curve until they were near the crossing. Now, the plaintiff owed that obligation not only to herself,-- self preservation would, of course, incline her to look and listen,-- it was an obligation which she owed to the...