Davis v. Slocomb
| Decision Date | 16 April 1923 |
| Docket Number | 3950. |
| Citation | 288 F. 352 |
| Parties | DAVIS, Agent, v. SLOCOMB. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Rehearing Denied May 14, 1923.
Thomas Balmer and Edwin C. Matthias, both of Seattle, Wash., for plaintiff in error.
Wm Martin and H. A. Martin, both of Seattle, Wash., for defendant in error.
Before GILBERT, MORROW, and RUDKIN, Circuit Judges.
GILBERT Circuit Judge (after stating the facts as above).
Error is assigned to the denial of the defendant's motion for an instructed verdict in its favor for the plaintiff's failure to prove her allegations of negligence. There was evidence that the decedent, together with his son, 16 years of age, and another man, were riding in a Chevrolet roadster through the town of Monitor. All three knew how to drive automobiles. The decedent was familiar with the road as it passed through Monitor. Not long before the date of the accident he had written to the railroad company, pointing out the dangers of the crossing, and requesting that steps be taken to make it more safe. He himself had been a railroad man for some 16 years. His son was a competent and experienced driver. There were three railway tracks at the crossing. On the day of the accident, box cars were spotted on the industry track on either side of the crossing. From the industry track to the passing track was 22.9 feet, and between the passing track and the main track the distance was 10.32 feet. There was evidence that on the day of the accident the decedent while at his home heard train No. 1 pass Monitor going west. He took it to be train 26 going east, for train No. 1 was more than two hours late, and was passing at the time when 26 should have been going by. There was evidence that at the time of the collision, the train was running at a speed of from 60 to 65 miles an hour. It struck the rear end of the automobile when it was nearly across the track and practically cut off the rear end of the machine. The bodies of the occupants were thrown through the air a distance of 120 feet. There was evidence that the train had failed to give the half-mile station whistle or the customary two long and two short whistles for the crossing at the quarter-mile post, or to ring the bell as it approached the highway. The engineer testified, however, that he gave a whistle a mile before reaching Monitor, and just before the engine struck the automobile he gave four whistles, two long and two short; that he did not give a danger whistle, because he did not think it was necessary; that he thought the automobile was going to stop; and that for the same reason he failed to put on the air brakes. He testified, also, that he thought the automobile would get across, and for that reason he did not put the air on, and he said that, if the automobile had kept on going at the same speed, it would have gotten across before it was struck. In view of all evidence it is very clear that the trial court would not have been justified in taking the case from the jury. Indeed, as we read the testimony, we find it difficult to see how the jury could have failed to find that there was negligence on the part of the defendants and that such negligence was the proximate cause of the accident.
The question of the contributory negligence of...
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Henry v. Condit
...removed his number plates therefrom." The court held that this statute created a conclusive presumption of ownership in Schwartz. In Davis v. Slocomb, supra, the facts were that the decedent the time of his death was riding in an automobile driven by his son in the state of Washington. The ......
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Southern Pac. Co. v. Stephens
...was properly submitted to the jury. The other automobile cases cited from this court, namely, Hines v. Johnson, 264 F. 465, Davis v. Slocomb, 288 F. 352, and Atchison, T. & S. F. Ry. Co. v. Spencer, 20 F.(2d) 715, are not thought to be out of harmony with this Upon the primary question of d......