Hales v. Michigan Cent. R. Co.

• Decision Date: 07 November 1912
• Docket Number: 2,231.
• Citation: 200 F. 533
• Parties: HALES v. MICHIGAN CENT. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

200 F. 533

HALES v. MICHIGAN CENT. R. CO.

No. 2,231.

United States Court of Appeals, Sixth Circuit.

November 7, 1912

Charles A. Thatcher and Guilford B. Keppel, both of Toledo, Ohio, for plaintiff in error.

Emery D. Potter, of Toledo, Ohio, and Henry Russel, and Frank E Robson, both of Detroit, Mich., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

PER CURIAM.

This was an action for personal injuries resulting in the death of plaintiff's decedent, Myers. At the close of the evidence offered by plaintiff, on motion of defendant, a verdict was directed and judgment entered in its favor; and the case is prosecuted here on error.

Myers received his injuries on the evening of February 15, 1908 while in the employ as motorman of an electric street railroad company and engaged in operating one of its cars across the main track of the defendant at a street crossing in Lucas county; the electric car being struck by a passenger engine (with train) of defendant at such crossing. The railroad crossing is in Phillips avenue. This avenue runs east and west, and defendant's main track runs in a north and south direction to and across the avenue and for some distance north of it. Within less than 70 feet west of defendant's main line is the line of the Lake Shore &amp Michigan Southern, which runs parallel to that of defendant. The defendant maintains one siding across the avenue east of and adjacent to its main track, and the Lake Shore two adjacent sidings west of its main track. Four protecting gates had been placed in position to lower and raise across the avenue, one on each side of the tracks of each of such companies, and had been operated from a tower by one man in the joint employ of the two railroad companies. An electric gong had also been placed in position and in use at this crossing by the defendant. All of the gates and the electric gong were out of repair and not in condition to be operated at the time of the collision, and the flagman was absent. The street railroad track runs lengthwise of the avenue and across the steam tracks.

The usual course followed by the railroads to protect the crossing when the gates were in order was to operate them together from the tower, and when not in order to have the towerman act as flagman at the crossing. The gong, when in order, was also sounded when trains were passing. It seems not to have been the practice to permit street cars or vehicles of any kind to stand between the inner gates during the passage of trains; indeed, the car that deceased was operating at the time of the collision was longer than the distance between such gates. Shortly before the collision two street cars going in opposite directions had reached the crossing. The one on the east side, bound west, was standing on a switch awaiting the crossing of the car on the west side, and the latter was the one that was struck by the locomotive. When this car approached the Lake Shore track, it was stopped, and its conductor, in obedience to a statutory provision in this behalf, went forward to look for approaching trains, and to signal the motorman to cross the tracks with his car, if the conductor found them clear. The conductor passed over the Lake Shore tracks, and thence along the avenue, either to or close to the main track of defendant, when with his lantern he signaled his motorman to come ahead. There was testimony tending to show that the habit of the motormen, on receiving such signals, was to put on power sufficient to start the car and drive it across the tracks of both roads, in order to avoid consequences of stalling in case of trouble with the trolley and wire. Upon receiving the conductor's signal, the motorman moved his car forward until its rear trucks had reached the Lake Shore tracks, when the conductor signaled to stop, indicating the approach of a train on defendant's track. There was testimony tending to show that this signal was received too late to stop the car, and that the prudent course to adopt was to put on additional power and endeavor to cross ahead of the approaching train; that the motorman adopted this course that, owing to excessive speed of the train, the collision occurred when the rear truck of the street car had almost reached the railroad track; that the street car was severed, one portion being thrown to the west and the larger portion to the east of defendant's track, and the train running several hundred feet before it was stopped.

The grounds of the motion to direct in substance were (1) that no actionable negligence was proved against defendant; (2) that from the testimony adduced a presumption arose of contributory negligence of the motorman, and that this was the proximate cause of the injury. The conclusion reached by the learned trial court was that the act of the street railroad conductor in giving the signal to cross the track 'was the last or proximate cause of the accident'; holding, further:

'This is, of course, not exonerating the Michigan Central Railroad Company (defendant) from carelessness or negligence, but it is simply applying to the case the doctrine of proximate cause and finding the other company responsible for the accident to its motorman.'

It is fairly to be inferred from this, we think, that the trial court believed the evidence tended to show negligence of defendant, but not contributory negligence of deceased.

The question is whether the motion to direct was sustainable upon the theory that the only actionable negligence shown was that of the street car company. We shall lay to one side all that was shown respecting the condition of the gates and the gong and the absence of the flagman. That condition had existed for about two days, and for present purposes it may be assumed, without deciding, that the employes of both the steam railroad and street railroad were chargeable with notice of it. It was admitted by plaintiff's counsel, in argument, that the street car conductor was negligent; but, as it seems to us, that does not present the whole question of liability. There was testimony to the effect that neither the whistle nor the bell of the locomotive was sounded in the course of its approach to the crossing, that there was a heavy traffic, especially street railroad traffic, passing over this crossing daily, and that there were at the time obstructions to the view.

Section 8853 of the Ohio Statutes (4 Page & A. General Code, p. 349) in terms imperatively requires every locomotive used on such a track to be equipped with whistle and bell, and the whistle to be sounded at a distance of at least 80 and not...