Detroit Southern R. Co. v. Lambert

• Decision Date: 18 February 1907
• Docket Number: 1,554.
• Citation: 150 F. 555
• Parties: DETROIT SOUTHERN R. CO. v. LAMBERT.
• Court: U.S. Court of Appeals — Sixth Circuit

150 F. 555

DETROIT SOUTHERN R. CO. v. LAMBERT.

No. 1,554.

United States Court of Appeals, Sixth Circuit.

February 18, 1907

Henry T. Hunt, for plaintiff in error.

Wm. D James, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

The deceased, Frank Waller, was struck by a Detroit Southern switch train, consisting of an engine pushing two empty cars, a box and a gondola, while he was in the act of driving a team of horses attached to an empty wagon, across what is termed the 'main siding' or track of that company at the Big Etna crossing in Ironton Ohio. The Big Etna furnace is on the Ohio river in the upper end of Ironton. The river here runs in a northwesterly direction. The tracks of the Norfolk & Western and the Detroit Southern railways parallel the river. Between them and the river lies the furnace. A wagon road leads from the furnace to Third street, crossing four tracks, two of the Detroit Southern and two of the Norfolk & Western. The first track is the long siding of the Detroit Southern, the next the main siding or track of the same road, the third the main track of the Norfolk & Western, and the last a siding of that road. These tracks are 13 feet apart from center to center the distance between the rails being 8 feet. Southwest of the long siding of the Detroit Southern is a short siding or stub switch, which ends near the laboratory building of the furnace, about 60 feet west or northwest of the crossing. On the wagon road, 25 feet from the long siding, on its river side, stood the furnace scales. The accident occurred about 5:30 p.m., on April 5, 1904, about the time the teamsters and men on the day turn were quitting work at the furnace, where some 200 were employed. At this time both the short and the long sidings of the Detroit Southern were full of cars. At the crossing a gap variously estimated from 10 to 40 feet in width was left between the side-tracked cars for the passage of teams. Next the crossing on the northwest, the direction from which the Detroit Southern train came, there were first two gondola cars, each 9 feet high, and then a cattle car with solid ends and lattice sides, 12 feet high. Other cars followed, mostly gondolas. The wagon Waller used was 45 inches high from the ground to the top of the bed. He was a man 5 feet and 6 inches in height and was in the habit of sitting on a board laid across the top of the bed. Necessarily, his view of the track was much obstructed; precisely to what extent was a disputed question. Waller was thoroughly familiar with the dangers of the crossing, having been employed there as a teamster for more than two years. Just prior to the accident, he had emptied his wagon at the furnace and started to drive home. When he reached the crossing, a heavy Norfolk & Western freight train carrying some 40 loaded cars, was proceeding northwest on the third track from the furnace. Waller stopped near the furnace scales, the front feet of his horses being between the rails of the long siding or first track. As soon as the Norfolk & Western freight passed, Waller started across and his team was struck, about the shoulder of the near horse, by the front car of the Detroit Southern switch train. Both the horses were killed, the wagon demolished, and Waller received injuries from which he died within a few hours. The plaintiff below claimed the railway company was guilty of negligence in running its train at an unusual and dangerous rate of speed without giving notice of its approach by blowing the whistle and ringing the bell. In defense, the railway company contended it was not running the train at an unusual and dangerous speed, that it did blow the whistle and ring the bell as it approached the crossing, and, however this might be, no recovery could be had, because Waller himself was guilty of negligence in not looking and listening before he attempted to cross the track. Otherwise, he would have observed the approach of the train and could have avoided the collision. The railway company asked for peremptory instructions on both points, which were refused, and a verdict and judgment rendered for the plaintiff. These two rulings and a refusal to exclude certain testimony offered by the defendant are the errors we are asked to correct. The rule is well settled that where a motion is made for a peremptory instruction, the court must take that view of the evidence most favorable to the party against whom the instruction is requested (Schofield v. Chicago & St. Paul Ry. Co., 114 U.S. 615, 619, 5 Sup.Ct. 1125, 29 L.Ed. 224; R.R. Co. v. Lowery, 20 C.C.A. 596, 74 F. 463; Riley v. L. & N.R.R., 66 C.C.A. 598, 133 F. 904; Williams v. Choctaw, etc., R.R. (C.C.) 149 F. 104); so that, in this case, the plaintiff below was entitled to receive the benefit of all fair and reasonable inferences from the testimony.

Upon the question of speed, three or four witnesses for the plaintiff testified that the train was running faster, some said much faster, than usual, and there was testimony tending to show that after the brakes were applied, the train ran in the neighborhood of 150 feet before it could be stopped, one car, the gondola, being thrown from the track by the impact. The testimony of the trainmen tended to show the train was not running more than five or six miles an hour. The resulting conflict in the testimony was, of course, for the jury to determine. As to the question of signals, six witnesses testified for the defendant below that signals were given, while four witnesses for the plaintiff below testified they did not hear any whistle blown or bell rung. If we had the right to pass upon it, we should say the weight of the testimony on this point undoubtedly was in favor of the contention of the railway company, but since some of the plaintiff's witnesses were where they ought to have heard the whistle, if it was blown, it seems to us, taking the rule laid down in N.P.R. R. v. Freeman, 174 U.S. 379 381, 19 Sup.Ct. 763, 43 L.Ed. 1014, that there was a conflict of testimony, which was properly left to the jury. This brings us to the alleged negligence of the plaintiff's intestate in failing to look and listen. In considering this, it is necessary to examine the testimony reflecting upon this point with...