Gilbert v. Erie R. Co.

• Decision Date: 13 November 1899
• Docket Number: 720.
• Citation: 97 F. 747
• Parties: GILBERT v. ERIE R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

97 F. 747

GILBERT v. ERIE R. CO.

No. 720.

United States Court of Appeals, Sixth Circuit.

November 13, 1899

O. C Pinney, for plaintiff in error.

Before LURTON, and DAY, Circuit Judges, and THOMPSON, District Judge.

DAY Circuit Judge.

This case was decided in the court below on demurrer to the petition, and the sole question presented for determination here is, did the court err in sustaining the demurrer? The petition, omitting formal parts, is as follows:

'Plaintiff says: That she is the duly appointed, qualified, and acting administrator of the estate of Calvin Gilbert, now deceased. That the defendant is a corporation, operating railroads within the state of Ohio, and was so doing at all the times herein mentioned, and among which was a railroad running from Cleveland, Ohio, southeasterly, and passing through the village of Solon, about twenty miles from Cleveland, and containing about six or seven hundred inhabitants. That said Calvin Gilbert, when in full life and on or about the 3d day of November, 1897, was residing in said village of Solon, on the first street crossing the tracks of the said defendant southeasterly from its depot. That he resided on the westerly side of said street, and southerly side of said railroad track, and only a short distance therefrom. That on or about the 3d day of November, at one o'clock p. m., said Calvin Gilbert riding in a covered buggy, with the side curtains on, passed out of his yard, driving a horse, turned northerly to cross said track. That when not more than 135 feet from said track, and while looking out of his buggy southeasterly, saw the train approaching; operated by said defendant, its officers, agents, and servants, at which time said train blew a long whistle, and was between 2,600 and 3,000 feet in a southeasterly direction from said crossing, and was coming in the direction of said crossing. That said Calvin Gilbert then continued to approach said crossing at a rate of six miles an hour, and, as he approached, looked in a northwesterly direction, along the tracks of said company, to discover if any trains were coming from that direction. That said defendant, at the time, maintained two tracks at said crossing. That about 600 feet easterly from the crossing on which said Gilbert was driving was another parallel crossing, which said train had to pass before reaching the crossing of said street on which said Gilbert was driving. That said Gilbert proceeded to approach and cross said tracks, and did not again look in the direction from which said train was coming, and had only time to observe as to whether any train was coming from the other direction, and reached said track on which said train was coming in not more than twenty-four seconds from the time that he saw the said train. The agents and servants of said defendant, in operating said train, did not blow any whistle for the crossing six hundred feet easterly from the crossing on which said Gilbert was driving, and did not blow any whistle for the crossing on which said Gilbert was driving; neither did said agents and servants cause any bell to ring from the time that they sounded said whistle, 3,000 feet away, until the time it hit the buggy in which said Gilbert was driving, as herein described. That it was the duty of said agents and servants operating said train to cause a distinct and sharp whistle to be blown before crossing either of said streets, and said Calvin Gilbert could have distinctly heard either of the same had it been blown, and would have been warned by said whistles, and escaped injury. Said Calvin Gilbert lived at said place ever since said railroad was constructed, and had crossed the same a great many times, and was familiar with the speed at which the train of said railroad company ran when passing upon said track in the vicinity of said crossing. That the ordinary and usual rate of speed at which said train ran would have required forty-five or fifty seconds in which to reach said crossing, and all of which said Calvin Gilbert knew, and which he believed it would require this train to occupy before said crossing was reached. Said Calvin Gilbert, not hearing any of said whistles, was therefore unaware of the rapid approach of said train, which was at the time going at the reckless rate of speed of more than ninety miles an hour. That said train was the fastest train upon said track, as per the time table issued by said defendant, and on said day was behind time, and had aboard some of the executive officers of said defendant, and was running at a terrible rate, and much faster than it had ever run when passing along said track in this vicinity. That, at the time said train approached this crossing, the engineer did not see the approach of Calvin Gilbert, and neither did the fireman on the engine of said train see him, and it was the duty of both to have seen him, and to have done all that could be done to avoid any accident. Said Calvin Gilbert was at all times after said whistle in full view of said engineer and fireman, and had he been seen by either, and had they exercised reasonable care in the management of the train after seeing him, said accident could have been avoided. The said defendant was not at said time maintaining any watchman at said crossing, which is in a thickly-settled part of Solon, and where teams frequently cross, and it was the duty of said defendant to have maintained a watchman at said crossing. Plaintiff says that, as the buggy of said Calvin Gilbert was upon the track upon which said train was coming, said train came into collision therewith, and struck said Calvin Gilbert, and caused his death. Plaintiff says that she is a widow and only heir of said Calvin Gilbert, and brings this action on behalf of herself as such heir and in her capacity as such administrator. Plaintiff says that the death of said Calvin Gilbert was caused by the negligent, careless, and reckless manner in which the agents and servants of said defendant managed its train, and by the failure of said defendant to maintain a watchman at said crossing, and was not caused by the carelessness or negligence of said Calvin Gilbert that in any way contributed to his death. That by reason of the premises she has been damaged in the sum of $10,000, for which she asks judgment against said defendant.'

From the opinion of the learned judge who heard the case in the circuit court, it is apparent that it was decided, and the demurrer sustained, upon the theory that the statements of the petition show the deceased, Calvin Gilbert, to have been guilty of contributory negligence, and as a consequence there can be no recovery from the resulting injury or death.

The duty of one driving upon a public highway, and approaching a railway crossing, has been the subject of adjudication in the supreme court of the United States in a number of cases. In Railroad Co. v. Houston, 95 U.S. 697, Mr. Justice Field, delivering the opinion of the court, says:

'If the position most advantageous for the plaintiff be assumed as correct, that the train was moving at an unusual rate of speed, its bell not rung, and its whistle not sounded, it is still difficult to see on what ground the accident can be attributed solely to the 'negligence, unskillfulness, or criminal intent' of the defendant's engineer. Had the train been moving at an ordinary rate of speed, it would have been impossible for him to stop the engine when within four feet of the deceased. And she was at the time on a private right of way of the company, where she had no right to be. But, aside from this fact, the failure of the engineer to sound the whistle or ring the bell, if such were the

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