Lake Erie & W.R. Co. v. Schneider

• Decision Date: 08 April 1919
• Docket Number: 3164.
• Citation: 257 F. 675
• Parties: LAKE ERIE & W.R. CO. v. SCHNEIDER.
• Court: U.S. Court of Appeals — Sixth Circuit

257 F. 675

LAKE ERIE & W.R. CO. v. SCHNEIDER.

No. 3164.

United States Court of Appeals, Sixth Circuit.

April 8, 1919

Frank S. Lewis, of Toledo, Ohio, for plaintiff in error.

Newcomb Newcomb, Nord & Chapman, of Cleveland, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

Plaintiff below, Schneider, recovered verdict and judgment for $3,525 against the railroad company and the latter seeks reversal under the present writ of error. The suit was for personal injuries sustained by plaintiff at the crossing of an ordinary highway, Hawkins road, and the railroad near the village of Fairlawn, Ohio. Hawkins road runs north and south, and the railroad in a southwesterly direction at the crossing and at the places in question here. ^[1] About 4 o'clock in the afternoon of June 1, 1916, plaintiff was driving his own motor truck north and over the crossing mentioned, when he and his machine were struck and injured by a west-bound train of the defendant company. The usual issues of negligence of the railroad company and contributory negligence of the plaintiff were made in the pleadings and contested by facts and circumstances disclosed by witnesses testifying in open court

We cannot think it necessary to discuss the various assignments of error set out in the record. A motion made at the close of all the testimony to direct a verdict for defendant was denied. No grounds were stated in support of the motion, but they are to be inferred from exceptions reserved to the court's charge and to its refusal of a particular request. It is objected, for example, that one effect of the court's instruction was to permit the jury to find under the evidence that it was negligence on the part of defendant to operate its train over a country crossing, as here, at a speed of 25 to 30 miles an hour. Upon this subject the court charged the jury at some length, saying among other things:

'Ordinarily if it (railway company) exercises the duty and degree of care required-- that is, ordinary care-- to notify and to warn persons of the approach of its trains, it may in the open country operate its trains across a highway at any rate of speed it sees fit, consistent with the safety and the operation of its trains; and the rate of speed will not, in and of itself, without other circumstances tending to impose other duties and obligations on the defendant company, constitute an act of negligence.'

The petition alleges, and there is testimony tending to show, that at the crossing the train was running 30 miles an hour without having given 'warning of any kind of the approach'; that is, that neither the whistle nor the bell of the locomotive was sounded in approaching or passing over the crossing. The petition also alleges that the railroad is maintained in a cut several feet in depth for some distance east of Hawkins road, and that along the south side of the cut the defendant had permitted weeds and shrubbery to grow upon its right of way; and there is also testimony tending to show that as respects trains approaching the crossing from the east the effect of the cut and growth was more or less to obstruct the view of persons approaching the crossing, as plaintiff was, from the south along the Hawkins road. It is true that the testimony as to warning or not by whistle and bell and as to obstruction of view is in conflict; but these features signified conditions naturally affecting the matter of speed, and, when so considered, it is clear enough, under the motion to direct, that the question of defendant's negligence and its effect in producing the accident were matters for the jury. Robbins, Adm'r, v. Pennsylvania Co., 257 F. 671, . . . C.C.A. . . ., decided by this court March 4, 1919; Zimmerman v. Pennsylvania Co., 252 F. 571, 572, 164 C.C.A. 487 (C.C.A. 6); Hales v. Michigan Cent. R. Co., 200 F. 533, 536, 118 C.C.A. 627 (C.C.A. 6).

The request made and refused as stated follows:

'If the view of this train, approaching from the east, was obstructed by weeds, shrubs, or trees, or anything else, it was the duty of the plaintiff to stop, if that was necessary, in order to see or hear the approaching train.'

This was presented at the close of the general charge, and in its stead the court instructed the jury thus:

'If the situation was such that the plaintiff could not see an approaching train, that imposed upon him a higher degree of care in the exercise of his other faculties to ascertain whether or not a train was approaching. I do not say to you, as a matter of law, that it was his duty to stop his automobile or his vehicle in that situation; but if, not being able to see, and if the noises were such that an ordinarily careful and prudent person would have stopped his car in order to listen before undertaking to cross, then the plaintiff here would be guilty of contributory negligence if he attempted to cross without stopping his car to ascertain whether or not a train was approaching.'

These instructions, of course, had reference to the defense of contributory negligence. It will be observed that the instruction refused, as well as the one given in its stead in terms made the duty of plaintiff to stop before entering upon the track dependent on whether this was necessary to the discovery of the approach or not of a train. Stating the same thing in another way, if an...