Detroit United Ry. v. Weintrobe

• Decision Date: 05 February 1919
• Docket Number: 3191.
• Citation: 259 F. 64
• Parties: DETROIT UNITED RY. v. WEINTROBE.
• Court: U.S. Court of Appeals — Sixth Circuit

259 F. 64

DETROIT UNITED RY. v. WEINTROBE.

No. 3191.

United States Court of Appeals, Sixth Circuit.

February 5, 1919

Benjamin S. Pagel, of Detroit, Mich., for plaintiff in error.

George E. Brand, of Detroit, Mich., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

Ruben Gorwitz and Ben Kuidd were driving a fruit peddler's wagon easterly on Ten Mile road, and were about to cross the double north and south bound tracks of the interurban railroad, as they lay along the extension of Woodward avenue several miles north of Detroit. About 500 feet north of the Ten Mile road crossing, the railroad tracks, curving northeastwardly, leave Woodward avenue and follow Washington street, in the edge of the village of Royal Oak. To the south, as these men came close to the tracks, there was a view for 1,250 feet. Kuidd's brother, Abe Kuidd, walked ahead of them across the tracks and signaled them to come on. As they approached the tracks, their attention was drawn to a south-bound car which came around the curve from Washington street. With this car there was apparent danger of collision but the motorman began to slow down, signaled with his hand to the wagon drivers, and repeatedly sounded his alarm whistle. He intended thereby to warn them against the approaching north-bound car; but, taking it as a notice to hurry across out of the way, the drivers did so, and entering upon the second track, were struck by the north-bound car. Both were killed. The administrator of Gorwitz brought this suit, and recovered the judgment against which this writ of error is prosecuted.

A review of the record convinces us that there was evidence tending to show negligence on the part of the defendant, and that the jury had some sufficient basis for concluding that the north-bound car was running at a dangerously excessive speed, and that it did not give those warnings of its approach which due care required. A recital of details leading to this conclusion would serve no useful purpose.

The circumstances go far to indicate contributory negligence by the wagon drivers. As against the presumption that they took some precautions as to the north-bound car before they began crossing, and as against the claim that Abe Kuidd, walking ahead, looked to the south at the proper time for looking and saw no car, is the physical fact that the car must have been in plain sight of any one who looked to the south just before they drove upon the north-bound track. Whether the necessary effect of the conceded physical facts would be to demonstrate contributory negligence, except for the considerations about to be mentioned, we think it unnecessary to decide, because there are additional circumstances which made the question clearly one for the jury--accepting the evidence, as we must in the light most favorable to plaintiff. At this point the railroad maintained automatic electric warning bells, so installed and arranged that they would begin to ring when an approaching car was 1,000 feet away and continue to ring until the car was past. In the apparent purpose to make one bell serve both for the Washington avenue curve and for the Ten Mile road corner, the installation was between these two points. There was a separate bell for each track. The bell which gave warning of a north-bound car approaching was upon a post about 200 feet north of the Ten Mile road crossing, while the one operated by the south-bound car was about 150 feet further and north of the beginning of the Washington avenue curve. The northbound bell was out of order. It had been in this condition long enough to charge the railroad company with notice thereof. At the time of and just before this accident, the south-bound bell was ringing and the north-bound bell was not. If, then, the case may be...