Delaware, L. & W.R. Co. v. Devore

• Citation: 114 F. 155
• Decision Date: 10 March 1902
• Docket Number: 70.
• Parties: DELAWARE, L & W.R. CO. v. DEVORE.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

114 F. 155

DELAWARE, L & W.R. CO. v. DEVORE.

No. 70.

United States Court of Appeals, Second Circuit.

March 10, 1902

Hamilton O'Dell, for plaintiff in error.

Walter K. Barton, for defendant in error.

Writ of error to review a judgment rendered by the circuit court for the Southern district of New York upon a verdict against the Delaware, Lackawanna & Western Railroad Company for the sum of $10,000 in favor of the plaintiff in an action to recover damages for personal injuries sustained by him at a grade crossing known as 'Hope Crossing,' on the line of the defendant's railroad in New Jersey, on the evening of November 22, 1892.

Before WALLACE and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

At the time of the injury the plaintiff was about one year and four months old. His parents had been living at Wallpack, N.J. On the morning of November 22, 1892, they drove from their home with this child to Belvidere, N.J., a distance of about 26 miles from Wallpack, and about 6 o'clock in the evening started to return home. On their way to Belvidere they had crossed the railroad track at Hope crossing, but Mrs. Devore (now Mrs. Heater) had never driven on that road before, and did not know that her husband had, and did not know the name of the railroad which they crossed. They were in a smoothly running top buggy, and had an old and gentle horse. The father drove the horse, and was seated on the right side of the buggy. The mother sat on the left side with the child in her arms. The evening was very dark and cloudy. 'It was storming some,-- a sort of hail, sleeting. ' The wind was on the right side of the buggy, and was blowing hard. The top part of the buggy was put down so as to prevent the wind from striking the baby. Hope crossing is about 2 1/2 miles from Belvidere, and as they approached it Mrs. Devore asked her husband if they were not near the crossing which they had crossed in the morning. He replied 'A ways ahead,' and pulled the horse down to a walk. The horse continued to walk until the crossing was reached. Mrs. Devore, from the time the horse began to walk, looked both ways and listened for the noise of a train, and testified that her husband did the same, but that she neither saw nor heard anything; heard neither bell nor whistle, and saw nothing, until, 'just as we got on the tracks, I saw the glittering of the rail, and that is all I saw. ' Mr Devore was injured, and has since died, and the child was terribly injured, so that he is now, and will be permanently a mental and physical wreck. He was previously a strong, healthy child. The train had left Bridgeville Depot, about a third of a mile to the right from Hope crossing, somewhat after 7 o'clock, and at the time of the disaster was going at the rate of 40 miles an hour. It does not appear that Mrs. Devore knew of the existence of this depot or of the time when trains might be expected to pass the crossing.

The issues were as to the negligence of the defendant in disobeying the statutory requirements as to bell or whistle; as to the contributory negligence of the parents of the child in omitting to take proper precautions when approaching a railroad crossing; and, in connection with the question of contributory negligence, the question was examined whether upon a very dark and stormy evening an approaching train could be seen or heard by the occupants of a buggy as it approached the crossing. A further issue was made in the pleadings and the testimony as to the especially dangerous character of the crossing, which should have compelled the defendant to take especial precautions, other than those provided by statute, to prevent casualties of the character encountered by the Devores.

Upon the question of obedience to the statute of New Jersey, which requires the ringing of a bell or the blowing of a whistle before and until the engine of a railroad train has crossed a grade crossing, the witnesses differed; the majority in number being in favor of the defendant's compliance with the statute on the evening of the accident. The court did not charge, as requested by the defendant, as follows: 'Upon the question whether the bell was rung and the whistle blown, positive testimony of witnesses that the one was blown and the other was rung is entitled to more weight than testimony of other witnesses that they did not hear the one or the other,'-- and to this omission an exception was taken. The request asserts the proposition that positive testimony of witnesses is entitled to more weight than the negative testimony of other witnesses, and makes no discrimination in regard to the credibility in other respects of the two classes of witnesses. The positive class may impress the triers with lack of confidence in their trustworthiness, their disinterestedness, their accuracy; but the request establishes as a rule of law that positive testimony is entitled to superior credit whether other things are equal or not, and is, we think, a broader rule than a court should be called upon to give to a jury, without reference to the credibility of the witnesses in other respects. In reply to the following question put by the foreman of the jury: 'Supposing the jury believe that the bell was rung and the whistle sounded, and suppose, at the same time, that Mrs. Heater used her best diligence in trying to see whether the train was coming or not, does that relieve the railroad from responsibility?' the court said: 'If they rang the bell and sounded the whistle they are relieved from responsibility, unless you reach the conclusion that the crossing there was such a peculiarly hazardous one that it was necessary to adopt further precautions, for the reason that the sounding of bells and whistles could not be heard by travelers on the highway.'

To that part of the instruction commencing 'unless you reach' the defendant excepted for the reason that there was no proof before the jury showing, or tending to show, that the crossing was 'a peculiarly hazardous one,' or that 'it was necessary to adopt further precautions, for the reason that the sounding of bells and whistles could not be heard by travelers on the highway. ' Much of the argument of the plaintiff in error is directed to an alleged entire or substantial absence of proof that the crossing was a peculiarly hazardous one. If peculiarly hazardous, the fact bore upon the question of the defendant's negligence. Railroad Co. v. Ives, 144 U.S. 421, 12 Sup.Ct. 679, 36 L.Ed. 485; Railroad Co. v. Moore, 45 C.C.A. 21, 105 F. 725. The traveled road from Belvidere as it approaches Hope crossing is a gradual ascent until the top of a hill or 'rise' in the ground is reached. As the road descends there is a homestead on the right occupied by Mr. Emery, consisting of a house, barn, and other outbuildings. A few trees are in the yard. The view towards Bridgeville Depot is to some extent interfered with by these buildings. The corner of the Emery fence nearest the crossing is about 70 feet from the first rail of the north-bound railroad track. The corner of the Emery house is 127 feet distant from that rail. At 735 feet from the crossing towards Bridgeville the railroad track enters a cut, which at 855 feet from the crossing is about 5 feet above the top of the rail, and at its extreme height is about 12 or 12 1/2 feet above the top of the rail. A defendant's witness testified that in the daytime, from a point in the highway 47 feet from the crossing towards Belvidere, the whistling post, 1,460 feet away towards Bridgeville, could be seen through the cut. A civil engineer in the defendant's employment testified that 'at a point 56 1/2 feet from the center of the north-bound track I saw an engine 550 feet. Just an engine happened to come along there, and I made those measurements. I could see the whole engine. At a point 40 feet from the track I could see the Bridgeville depot very plainly, from the intervening road. At that same point, 56 1/2 feet, I could see part of the depot.'

This testimony was not contradicted by measurements made by the plaintiff's witnesses, who relied on the testimony of one McConnell and of Mrs. Heater. McConnell's testimony was of the most importance. He testified in chief as follows:

'I have often driven and walked over this wagon road at the

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