Erie R. Co. v. Weber

• Citation: 207 F. 293
• Decision Date: 03 June 1913
• Docket Number: 2,339,2,400.
• Parties: ERIE R. CO. v. WEBER. SAME v. KRAFT.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

207 F. 293

ERIE R. CO. v. WEBER.

SAME v. KRAFT.

Nos. 2,339, 2,400.

United States Court of Appeals, Sixth Circuit.

June 3, 1913

Hine Kennedy & Manchester, of Youngstown, Ohio, for plaintiff in error.

Charles Koonce, Jr., and Thomas McNamara, Jr., both of Youngstown Ohio, for defendants in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

The decedents, Anna Weber and John Kraft, were struck and killed at the same time by defendant's locomotive engine. The respective suits therefor were separately tried, each resulting in verdict and judgment for the plaintiff. The cases are here on writs of error, and have been argued together. But four alleged errors have been discussed. The first two relate to both cases; the remaining two are limited to the Kraft case.

1. A request for directed verdict in defendant's favor was asked and denied. The accident occurred at a grade crossing in Youngstown Ohio, about 5:30 p.m., on December 18th. The two decedents in company with Mrs. Kraft, the wife of decedent John Kraft, approached the railroad tracks on Valley avenue from the west, on their walk home from church. It was already dark, and the switch lights were burning. At this crossing were seven tracks extending north and south; the most westerly being the Lake Shore lead track. Next east were three other Lake Shore tracks, next the Erie track. Next east collision occurred, and two tracks still easterly. The plaintiffs' evidence tended to show that as the three pedestrians approached the Lake Shore lead track a switch engine thereon, running tender foremost and drawing a cut of cars from the north, approached the crossing; as it approached the gates were lowered; that the switch engine came to a full stop a short distance north of the crossing; that thereupon the gates were raised, and the three persons started to cross the tracks looking up and down to avoid danger; that the crossing was not brightly lighted, the most prominent light being the headlight on the tender of the Lake Shore switch engine; that this engine was constantly discharging smoke and steam, which was carried by the wind in the direction the pedestrians were traveling, and at such a height as to obscure the view to the north; that there was also light snow in the air; that the parties crossed the tracks one after another, looking and listening for approaching cars or engines, but seeing and hearing nothing; that on approaching the Erie track they again looked and listened, both up and down the track, and seeing and hearing nothing stepped upon the track, when they were struck by the engine, running at a high rate of speed, variously estimated at from 20 to 40 miles an hour, with steam shut off and 'drifting,' and without ringing of bell or blowing of whistle. But for the smoke and steam from the switch engine, the view was unobstructed to the north for nearly half a mile. There was testimony on defendant's part tending to show the ringing of bell and blowing of whistle, and that the smoke and steam were not so dense or continuous as to prevent a view of the approaching train, and that its approach was not so quiet as to have prevented its being heard in time to avoid collision.

Defendant contends that the conduct of the three parties in crossing the tracks under those circumstances was so clearly imprudent as to justify a direction of verdict in its favor. We are unable to agree with this contention. It is conceded there was sufficient evidence of defendant's negligence to justify its submission to the jury.

On a request for directed verdict, the court is bound to take that view of the evidence most favorable to the adverse party. Erie R.R. Co. v. Rooney (C.C.A. 6th Cir.) 186 F. 16 19, 108 C.C.A. 118, and cases there cited. The testimony of Mrs. Kraft as to the inability of the parties to see or hear the approaching train was corroborated by two of their friends, who crossed the tracks but a short distance in...