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

• Decision Date: 09 December 1915
• Docket Number: 1969.
• Parties: DELAWARE, L. & W.R. CO. v. WELSHMAN.
• Court: U.S. Court of Appeals — Third Circuit

229 F. 82

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

No. 1969.

United States Court of Appeals, Third Circuit.

December 9, 1915

On Petition for Rehearing, January 31, 1916.

On Petition for Rehearing.

Frederic B. Scott, of New York City, for plaintiff in error.

W Locke Rockwell, of Newark, N.J., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below Mrs. Alice B. Welshman, executrix of Dr. George O. Welshman and a citizen of New Jersey, brought suit and recovered a verdict against the Delaware, Lackawanna &amp Western Railroad Company, a corporate citizen of Pennsylvania, for damages based on the death of Dr. Welshman through the defendant's alleged negligence. The defendant, on entry of judgment, sued out this writ. While there are 16 formal assignments of error, they finally narrow to the court's alleged error in refusing defendant's request for binding instructions. Whether the court erred depends on the answer to two questions: First, was there evidence tending to show defendant was negligent? and second, should the court, as a matter of law, have held that Dr. Welshman was guilty of contributory negligence?

Confining ourselves to such testimony as bears on these questions, we may say the proofs on behalf of the plaintiff tended to show that on the afternoon of the accident Dr. Welshman drove his automobile to the north side of defendant's Grove street double-track crossing in East Orange, N.J. The crossing was protected by safety gates operated by a watchman, who stood on the southwest corner of the crossing. The watchman was apprised of the approach of trains by the ringing of a bell in his watch box and by a color change in an indicator, also in the box. The bell and indicator were actuated electrically by an approaching train when 2,000 feet distant from the crossing. All the apparatus was in order. Dr. Welshman stopped his car about 15 feet from the gates, which at that time were down to allow a westbound train to pass. As soon as this train passed the gateman raised the south and then the north gate. Thereupon Dr. Welshman started his machine at moderate speed to cross the tracks. Heavy wagons crossed at the same time. About the time the doctor reached the west-bound track the gateman, who had discovered from the bell and signal that an east-bound express then due was coming, dropped the north gate, but kept the south gate up and cried and waved to the doctor to hurry forward. Whether the cry was heard or heeded does not appear, but the doctor proceeded slowly across. He almost reached the other side, but the hinder part of his rear wheel was caught by the locomotive, his car demolished, and he himself instantly killed.

The court submitted to the jury the question of the defendant's negligence in three aspects: First, failure to ring a bell a proper statutory distance from the crossing; second, the alleged failure of the engineer, after he saw Dr. Welshman in danger, to take proper steps to check or stop the train; third, the alleged negligence of the watchman in operating the gates. These questions were all submitted to the jury in terms to which no objection is made, provided submissible evidence on those several questions existed. Without reciting such evidence it suffices to say it is found in the record, the trial judge properly submitted it to the jury, and he committed no error in refusing to give binding instructions for the defendant on the ground of no negligence by defendant being shown. It follows, therefore, the judgment must be affirmed, unless the court erred in refusing to further hold as a matter of law that Dr. Welshman was guilty of contributory negligence.

We deem it proper to here note that this court has no purpose to recede in any respect from the principle laid down in New York Cent. & H.R. Ry. Co. v. Maidment, 168 F. 21, 93 C.C.A. 413, 21 L.R.A. (N.S.) 794, and restated in Brommer v. Penna. R.R. Co., 179 F. 577, 103 C.C.A. 135, 29 L.R.A. (N.S.) 924, in reference to automobile drivers making dashes over crossings without taking proper precautions. In the former case we said:

'The duty of an automobile driver, approaching tracks where there is restricted vision, to stop, look, and listen, and to do so at a time and place where stopping and where looking and where listening will be effective, is a positive duty, and these safeguarding steps the plaintiff failed to take. He stopped where stopping served no purpose, and failed to stop where stopping would have disclosed danger. He made chance, and not sight, the guaranty of his safety. We are clear he was guilty of contributory negligence, and the judgment below should be reversed.'

The facts in those cases were so different that, apart from their general principle, those decisions are not applicable to the case in hand. Here Dr. Welshman did not attempt to cross the track until the gates were raised by a watchman, who was presumably competent, and who was in a better position than the doctor to see an approaching train. The railroad having indicated its estimate of the safety of the situation by raising the gates, and Dr. Welshman having acted accordingly, it is manifest that this court would not be justified in holding that in accepting this invitation to cross the decedent was so heedless of his own safety that, as a matter of law, he was guilty of contributory negligence. On the contrary, we think the experience and judgment of everyday life is that the raised gate is an index of the railroad's view that crossing may be safely made, and that a crosser may reasonably accept it as an invitation to go forward. And such have been the adjudged cases. We avoid needless presentation of other decisions by referring to a single well-considered case, Erie Company v. Schultz, 183 F. 674, 106 C.C.A. 23, where the Circuit Court of Appeals of the Sixth Circuit collected the authorities and said: 'If a flagman beckons the waiting team driver to come ahead, or if a towerman raises the lowered gates, in either case there is a representation to the driver that there is no approaching train within striking distance. The driver who moves forward under this representation cannot be held to the same strict rule of instant and constant and extreme vigilance which is enforced against one who crosses in sole reliance on his own judgment.'

Of course, the raising of the gates did not make the railroad either an insurer or the sole guardian of the crosser's...