Horn v. Baltimore & O.R. Co.

Citation54 F. 301
PartiesHORN v. BALTIMORE & O.R. CO.
Decision Date07 February 1893
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

S. M Hunter, for plaintiff in error.

Kibler & Kibler and J. H. Collins, for defendant in error.

Before JACKSON and TAFT, Circuit Judges, and SWAN, District Judge.

SWAN District Judge.

The plaintiff in error as administratrix of the estate of James S. Horn, deceased, brought this action in the court of common pleas for the county of Licking, in the state of Ohio, to recover damages for the death of her intestate, who was killed at the Maple street crossing in the village of Utica by the cars of the defendant in error, in the evening of September 4, 1890. The case was seasonably removed to the circuit court of the United States for the southern district of Ohio upon the petition of the railroad company, alleging the diverse citizenship of the parties and it was there tried before Judge Sage and a jury. At the close of the plaintiff's evidence the circuit court decided a verdict for the defendant on the ground that the deceased's negligence precluded the plaintiff's recovery.

The time and locality of the accident are not in dispute, nor is there any essential difference in the relations of the circumstances given by the various witnesses. Decedent was 71 years of age, and was engaged in vending washing machines. He had resided in Utica for 4 years, and in its vicinity for 10 or 12 years, and was familiar with the railroad crossings in that village. At the time of his death, he was riding in a close, covered wagon drawn by a single horse. The cover extended the whole length of the vehicle, and equally shut out his view of objects on either hand, and hid him from the sight of persons on each side. The evidence is conflicting as to the condition of his hearing, but, under the view taken of the case that fact is immaterial.

The railroad, from its entrance, in the upper limits of the village, runs in a north and south line, parallel with Main street, as far south as North street, which it intersects at a right angle; thence it carries an easy curve through the village to the southeast, intersecting somewhat obliquely and on the same level, Maple street, 300 feet south of North street. The course of North and Maple streets is east and west. The main track from about North street southward is flanked on each side by side tracks. On the night in question the east side track was occupied by a north-bound freight train, which extended from the switch on North street to a point below Maple street, but had been divided at the latter crossing to permit the passage of vehicles over the tracks. This train was awaiting the passage of the south-bound express train, due at Utica about 8 o'clock p.m., but that night 10 or 15 minutes late. On the south side of Maple street, about 15 feet from the track, stood a grocery, in front of which sat three persons who witnessed the accident. Two of these testified to its circumstances. Their testimony agrees, substantially, that they heard the whistle of the approaching train about the same time that the deceased (whom they did not see, but whom they recognized by his wagon) came from the eastward along Maple street until about opposite the grocery, where the horse seemed to halt momentarily, but was urged on by the slapping of the reins, towards the crossing. The horse again seemed to halt when he reached the side track, but was apparently urged on as before, when the horse and wagon were almost instantly struck by the train, and Horn was killed. There is no evidence that the bell of the locomotive was rung. Several witnesses testified that the whistle was sounded, while there is a negative testimony from others that they did not hear it. The view of the coming train was somewhat obstructed to an observer on Maple street by the position of the freight train, and there is evidence that a lumber yard on the north side of Maple street, and an orchard north of North street, interfered with the sight of the track. There is no evidence, however, that the decedent made any attempt to look or listen for the train, beyond the slackening of the horse's pace in front of the grocery and as he came upon the side track. There was no stop by the deceased from the time he was first seen at the grocery until the collision, nor anything to indicate any effort to listen for danger. The train was running at a speed of 45 to 50 miles per hour, and did not regularly stop at Utica.

The charges of negligence upon which this action is based are (1) that 'said passenger train was then and there negligently operated up to and over the crossing, by running at an excessively high, careless, negligent, and dangerous rate of speed;' and (2) 'negligently and carelessly gave no signal of warning of its approach to said crossing.'

But little stress is laid upon the first charge, except as it may be connected with the failure to give the statutory signals when approaching the crossing. It has been held that high speed is not per se evidence of negligence. McKonkey v. Railroad Co., 40 Iowa, 206; Klanowski v. Railroad Co., 64 Mich. 287, 31 N.W. 275. It is not claimed that the statutes of Ohio limit the rate of speed at which railroad trains shall be run in approaching highway crossings, or that it is restricted by any ordinance of the village of Utica. The examination of this question is, however, unnecessary, as the case does not call for its decision.

2. The ground of recovery most strongly pressed is founded on the alleged breach of the statute of Ohio. By section 3336, Rev.St.Ohio, as amended May 13, 1886, (83 Ohio Laws, 153,) it is provided:

'Every company shall have attached to each locomotive engine passing on its road a bell of the ordinary size in use on such engines, and a steam whistle, and the engineer in charge of the engine in motion, and approaching a turnpike, highway, or town crossing, upon the same level therewith, and in like manner when the road crosses any other traveled place, by bridge or otherwise, shall sound such whistle at a distance of at least eighty, and not further than one hundred, rods from the place of such crossing, and ring such bell continuously until the engine passes such road crossing. * * *'

Section 3337 imposes a penalty upon the 'engineer or person in charge of any such engine who fails to comply with the provisions of the preceding section, ' and further provides that 'the company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person. ' While this statute subjects railroad companies to liability for the damages occasioned by its violation, it does not confer a right of action upon the person injured, unless the omission of the signals caused the disaster. It does not absolve a plaintiff from the consequences of...

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    • United States
    • Idaho Supreme Court
    • 2 Julio 1909
    ... ... from any one of such acts independently of any or all of the ... others, it will be sufficient to entitle the plaintiff to ... recover if he prove ... In support of this principle of law appellant cites ... the following authorities: Horn v. Baltimore & O. R. R ... Co. , 54 F. 301, 4 C.C.A. 346; Chicago & N.W ... Ry. Co. v ... ...
  • Sherlock v. Minneapolis, St. Paul, & Sault Ste. Marie Railway Company
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  • McBride v. Atlantic Coast Line R. Co.
    • United States
    • South Carolina Supreme Court
    • 28 Junio 1927
    ...it does not confer a right of action upon the person injured, unless the omission of the signals caused the disaster." Horn v. Railroad Co. (C. C. A.) 54 F. 301. "It is evident from this language that the failure give signals must have occasioned the accident-that is, must have been the pro......
  • Miller v. Atlantic Coast Line R. Co.
    • United States
    • South Carolina Supreme Court
    • 10 Septiembre 1926
    ...it does not confer a right of action upon the person injured, unless the omission of the signals caused the disaster." Horn v. Railroad Co. (C. C. A.) 54 F. 301. " It is evident from this language the failure to give signals must have occasioned the accident-that is, must have been the prox......
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