Erie R. Co. v. Hurlburt

Decision Date06 April 1915
Docket Number2531.
Citation221 F. 907
PartiesERIE R. CO. v. HURLBURT.
CourtU.S. Court of Appeals — Sixth Circuit

I. T Siddall, of Cleveland, Ohio, for plaintiff in error.

W. J Beckley, of Ravenna, Ohio, for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and McCALL, District judge.

McCALL District Judge.

This case was tried to a court and jury, resulting in a verdict and judgment for the plaintiff below (hereinafter called the defendant). The defendant below (hereinafter called the company), brings error.

At the close of defendant's evidence, the company moved the court for a directed verdict in its favor. The motion was overruled, and thereupon the company introduced its evidence. At the close of all the evidence, the company renewed its motion for a directed verdict. The motion was also overruled and the company reserved exception. This action of the court is made the grounds for the fourth, fifth, and sixth assignments of error.

The company waived the exception taken to the overruling of its motion to direct a verdict in its favor, at the close of the evidence offered by the plaintiff, below, by thereafter introducing evidence in its own behalf. Big Brushy Coal & Coke Co. v. Williams, 176 F. 532, 99 C.C.A. 102, and cases cited. This disposes of the fourth assignment.

The fifth and sixth assignments are to the effect that the court erred, in refusing to instruct the jury to return a verdict for the company, upon all the evidence. Mr. Justice White (now Chief Justice), in speaking for the Supreme Court, in Southern Pacific Co. v. Pool, 160 U.S. 440, 16 Sup.Ct. 339, 40 L.Ed. 485, said:

'There can be no doubt where evidence is conflicting that it is the province of the jury to determine from such evidence the proof which constitutes negligence. There is also no doubt, where the facts are undisputed * * * that the question of negligence is one of law.'

We must therefore consider the evidence to determine if it is undisputed. If undisputed, then is it of such character as fair-minded men will honestly draw different conclusions from the facts proven? Richmond & Danville Railroad Co. v. Powers, 149 U.S. 43, 13 Sup.Ct. 748, 37 L.Ed. 642.

There is only one surviving eyewitness of the accident, and that is Mrs. Emma Hurlburt, the defendant in error. Her evidence touching the question of contributory negligence is wholly undisputed. The evidence relating to the physical surroundings of the place where the accident occurred is practically undisputed. The facts are, substantially as follows:

A buggy, occupied by Mrs. Hurlburt and her husband, was struck by one of the company's engines at a point where the highway crossed the railroad, killing her husband and seriously injuring Mrs. Hurlburt. It occurred about 9 o'clock on the morning of March 1, 1912. The weather was clear and cold. The parties resided near the place of the collision and were familiar with the surroundings and the train schedule. They knew that on this morning the train from the east-- the one that struck them-- was late and had not passed. They were traveling along the highway with the curtains of the buggy down, and they were wrapped up, as persons would be on such a morning. The highway approached and crossed the railroad at an angle of about 31 degrees. They were traveling nearly due west. The train approached from the east, going in a southwesterly direction, and on their right side. East from the point of crossing, the railroad was on a 1 degree curve, and the track could be clearly seen for about 1,500 feet. It was a double track and on a fill. The train was on the track farthest from the travelers. They stopped when they reached a point, when, sitting in the buggy, they were about 15 feet from the nearest rail of the track next to them, and both of them looked east along the track and listened for the train, which they knew was late and had not passed. They neither saw nor heard it. Thereupon, the husband, who was driving, and sitting on the right side of the buggy, started the horse, which shortly began to trot. The husband made no other effort to ascertain if it was safe to proceed across, but Mrs. Hurlburt, through an opening that she made between the curtains of the buggy top, on the side or corner next to the track, over which the delayed train would run, and for which they were looking, said that she watched the track to the east, from the time the horse started until the collision; that she could see the track to the cut, and that she saw no train, 'because the train was not there. ' The cut was about 1,500 feet east of the crossing.

Assuming for the moment that Mrs. Hurlburt was driving the horse on the occasion in question, and was chargeable with exercising that degree of care imposed by law, upon one in charge of a team, and driving along a highway, as in this case, could there be any doubt as to the conclusions of fair-minded men as to her contributory negligence under the facts stated? Under the assumed case, it would be her duty to look. This she said she did. If she looked, she was chargeable with seeing what was there to be seen, by an ordinarily prudent person, in the exercise of reasonable care while looking. If she looked attentively, and failed to see what was plainly to be seen, then she was negligent; and if such negligence was a proximate cause of the injury, then in such case we think the jury should have been told to return a verdict for the company. N. P. Railroad v. Freeman, 174 U.S. 379, 19 Sup.Ct. 763, 43 L.Ed. 1014; I.C.R.R. Co. v. Ackerman, 144 F. 959, 76 C.C.A. 13; Kallmerten v. Cowen, 111 F. 297, 49 C.C.A. 346; Philadelphia & R.R. Co. v. Peebles, 67 F. 591, 14 C.C.A. 555.

It is insisted by counsel for the defendant in error, that Mrs Hurlburt was a passenger on the occasion in question, and that the negligence of her...

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