Evans v. Erie R. Co.

• Citation: 213 F. 129
• Decision Date: 14 April 1914
• Docket Number: 2430.
• Parties: EVANS v. ERIE R. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

213 F. 129

EVANS v. ERIE R. CO.

No. 2430.

United States Court of Appeals, Sixth Circuit.

April 14, 1914

E. H Moore and Frank Jacobs, both of Youngstown, Ohio, for plaintiff in error.

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

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff's intestate, while driving with his wife and daughter across the tracks of defendant at Crab Creek Crossing, so-called adjacent to Youngstown, Ohio, was struck and instantly killed by defendant's passenger train. The wife suffered fatal injuries from the collision. This suit is brought to recover for the death of the husband.

The accident occurred on December 21, 1906, at about 4:30 p.m. It was already dark, and snow was falling. Several hundred feet west of the crossing Hubbard Road connects with Wick avenue (extending northerly from Youngstown), and runs easterly across the creek, and then crosses the railroad tracks practically at right angles. The Lake Shore and the Erie maintain each a double track at this point; the two railroads paralleling each other (the Lake Shore being westerly), the tracks being but a few feet apart, and trains running in each direction on each road. From the east end of the bridge to the center of the first Lake Shore track is about 20 feet. There was a heavy upgrade to the north, and thus from the direction of Youngstown, extending for 5 or 6 miles, and embracing the crossing. Decedent waited on the bridge for the passage of a long freight train going north on the nearest Lake Shore track (upgrade), propelled by one engine ahead and two pusher engines. After the freight train had passed decedent started to cross the tracks and was struck by the Erie south-bound passenger train, which was running in a direction opposite to that of the Lake Shore freight, and on the second track east from that on which the freight was running; the two tracks being about 30 feet apart from center to center. The Erie train was thus going downgrade, and was behind time and coasting. Defendant is charged with negligence in failing to maintain a watchman, gates, or electric warning bell at the crossing, in failing to give warning of the train's approach by bell or whistle, and in running at an alleged negligent speed of 50 miles per hour. No gates, watchman, or other safeguard of that nature had ever been maintained, so far as suggested by the record. There was evidence tending to show negligence in each of the other respects charged. Defendant denied negligence on its part, and alleged contributory negligence on the part of deceased. Trial was had to a jury, which rendered verdict for defendant.

The complaints which we shall discuss are, first, that the court excluded as a ground of actionable negligence the failure to provide a watchman or gates at the crossing; second, the refusal to permit the plaintiff to show that within 2 years previous to the accident there had been three fatal accidents at this same crossing from Erie southbound passenger trains, as well as 'other numerous escapes from like accidents' in that period; third, that the court in its charge upon the subject of contributory negligence placed too severe a burden on decedent.

1. The charge as to contributory negligence. Decedent was 52 years of age. He operated a farm, a country bank, and a coal mine. His habits were good. He was familiar with the crossing in question, being in the habit of driving over it in going to and from Youngstown. The daughter testified that they waited about 10 minutes after the freight train passed before crossing the railroad tracks (apparently an exaggerated estimate of time); that her mother sat in the middle and was driving, her father being upon the mother's right, the daughter being upon the left side of the carriage, the top being up, and side and back curtains on; that after the freight passed the father told the mother to look up the tracks, and he would look down; that both leaned forward and looked, and that the daughter looked; that both the father and mother continued to look while crossing the tracks, the father saying, 'Be careful, there is more than one track;' that no bell or whistle was heard, nor any light seen (except that of the freight); and that there was nothing to indicate the approach of the passenger train until they were struck. The speed of the freight train was variously estimated by those operating it at from 4 to 12 miles per hour. The point at which the last pusher engine of the freight met the engine of the passenger train was variously estimated at from 100 to 500 feet north of the crossing. The estimates of the speed of the passenger train range from 20 miles to 40 to 50 miles per hour. A pedestrian crossing the track at about the same time as decedent testified that the latter's horse was started when the freight train had gone only from 2 to 3 yards beyond the crossing; another pedestrian, who waited near decedent's carriage while the freight train was passing, estimated that she had gotten about 15 feet beyond the Erie track when the collision occurred.

The jury were instructed:

(a) That, if the Lake Shore train 'was there as described by the witnesses, and (decedent) started right back of that train to cross within a few feet, that would be plainly negligence on his part, and he cannot recover. That is quite apparent.'

And (b) that, if decedent 'could have waited and allowed it (the freight) to pass and escape injury, but he did not, and as soon as the train was a few feet over the crossing he started and was struck, then he cannot recover.'

(c) That, if decedent and his wife started to drive upon the tracks when the rear end of the freight train 'was only 2 or 3 yards over the crossing, your verdict should be for the defendant.'

And (d): 'I will say to you, as a matter of law, that if the only obstruction to decedent's view of the approaching train was in passing of the Lake Shore freight train, or the smoke from the engine thereof, your verdict must be for the defendant, if, under the other instructions I have given you, you find this smoke or steam was of a temporary nature, and it was his duty to await the removal of such obstruction after the Lake Shore train left before attempting to cross the tracks.'

Defendant construes the first three paragraphs of these instructions-- which we have indicated as (a), (b), and (c)-- as meaning only that, if decedent drove upon the tracks immediately in the rear of the freight train, 'without waiting a sufficient time to enable him to have a proper view of the track,' no recovery could be had.

If this is all the instruction meant, it would not be subject to criticism. But we think the use of the expression 'a few feet' was unfortunate in its indefiniteness, and that the use of that term might be consistent with a movement of the freight train far enough to permit a clear view of the Erie track for a sufficient distance. Moreover, there was testimony that the smoke from the rear pusher engine of the freight train settled in a southeasterly direction, which would be toward the Erie track. If decedent did not know of the presence of this smoke, he would not be negligent in failing to observe an approaching train concealed thereby. While, in one portion of the charge, decedent's knowledge of the existence of this smoke as a temporary obstruction to the view was evidently intended to be submitted as an ingredient of contributory negligence, ^[1] yet, in the later instruction above quoted, the question of such knowledge, if not eliminated, was not clearly made necessary to a finding of contributory negligence. We are constrained to think that the learned trial judge thus imposed upon decedent a greater burden of care than was warranted.

2. Proof of other accidents. The record is somewhat inartificial; but we think it should be construed as meaning that plaintiff offered to give evidence of other accidents and near...