Leahy v. Detroit, M. & T. S. L. Ry.

• Decision Date: 12 March 1917
• Docket Number: 2920.
• Citation: 240 F. 82
• Parties: LEAHY v. DETROIT, M. & T. SHORT LINE RY.
• Court: U.S. Court of Appeals — Sixth Circuit

240 F. 82

LEAHY v. DETROIT, M. & T. SHORT LINE RY.

No. 2920.

United States Court of Appeals, Sixth Circuit.

March 12, 1917

G. W Ritter, of Toledo, Ohio, for plaintiff in error.

G. D Welles, of Toledo, Ohio, for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and EVANS, District judge.

EVANS District Judge.

This litigation resulted from a deplorable accident which occurred at the intersection of the defendant's track and the Matzinger road, near the city of Toledo. The track ran north and south and the road east and west, crossing at right angles. Three sisters were instantly killed. One of them was Gertrude Helen Delaney. The plaintiff was appointed administratrix of her estate, and began this action in the court of common pleas of Lucas county, from which it was removed to the court below upon the petition of the defendant, which is a Michigan corporation.

Omitting certain allegations which were struck out of the petition because held to be immaterial, the basis of the plaintiff's claim for damages resulting from the death of her intestate is stated in the petition as follows:

'Plaintiff says that, at the time said electric car ran into and collided with said automobile, said electric car was negligently being propelled by defendant at a high and dangerous rate of speed, to wit, in excess of 35 miles an hour, and that defendant negligently failed to give said decedent proper and sufficient warning, or any warning, of the approach from the south of said car that so ran into and collided with said automobile, and that said defendant negligently failed to give to the driver of said automobile proper and sufficient warning, or any warning, of the approach from the south of said car that so ran into and collided with said automobile.

'Plaintiff says that the death of said decedent was caused directly and proximately by the said negligence of the said defendant.'

The defendant by its first defense put in issue each of the allegations above set forth.

After the testimony had all been heard, the defendant moved the court to arrest the evidence from the jury and direct a verdict in its favor. This motion was sustained, the verdict and judgment were entered accordingly, and the plaintiff brought the case here. The vital question thus presented is whether the evidence was sufficient to show negligence on the part of the defendant.

The settled definition of 'negligence' is that it is 'the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. ' Railroad Co. v. Jones, 95 U.S. 441, 24 L.Ed. 506; The Nitro-Glycerine Case, 15 Wall. 536, 21 L.Ed. 206.

In the latter case (15 Wall. 537, 21 L.Ed. 206), the Supreme Court also said:

'The mere fact that injury has been caused is not sufficient to hold' one accused of negligence. 'No one is responsible for injuries resulting from unavoidable accident, whilst engaged in a lawful business. A party charging negligence as a ground of action must prove it. He must show that the defendant, by his act or by his omission, has violated some duty incumbent upon him, which has caused the injury complained of.'

Indeed, the clearly established rule in such cases is that the onus is on the plaintiff.

With these well-settled propositions in mind, we approach the consideration of the question whether the learned trial judge was correct in holding that plaintiff's allegations of negligence had not been established by the testimony.

It was conceded that the defendant operated a trolley line of railway between Toledo, Ohio, and Detroit, Mich., and that for operating and propelling its cars it used electricity as its motor power.

The intersection of defendant's track and the Matzinger road was in the open country. There was only one dwelling house in the immediate vicinity, which was a frame house located along the west side of the defendant's track and about six feet from its west rail. It faced north, and its front was 51 feet from the Matzinger road. West of the dwelling and appurtenant to the premises were a cider mill and two barns, the last of the latter being about 300 feet west of the intersection. There were also a number of trees on the premises, and the danger of approaching the intersection from the west was increased by the presence of these structures and the trees near the south side of the road.

Frederick P. Leahy, a resident of Toledo, owned and operated a Ford automobile. In the afternoon of Sunday, July 6, 1913, he took his brother-in-law and three of his wife's sisters as his guests for a ride in his automobile. The brother-in-law sat with him and to his right on the front seat, and the three sisters sat on the rear seat; plaintiff's intestate sitting between the other two. The automobile, moving along the Matzinger road, approached the intersection from the west. Leahy did not stop the automobile, but did lower its speed and decrease its power as it came near the defendant's track at the crossing. He testified that he looked and listened before doing so, and that he did not then see nor hear the approach of any car from the south; but he drove the automobile upon the defendant's track, and before it had passed entirely over the track the automobile was struck near its rear axle by one of defendant's cars which rapidly approached the intersection from the south, and the three young women were thereby killed-- one of them being the plaintiff's intestate. When the automobile approached the track at the intersection its top was thrown back. It was going at a speed of about 10 miles an hour. The driver of the automobile had shortly before seen one of defendant's cars go northward. When he first saw the car that struck him, it was within a short distance of him, probably alongside the dwelling house, and the car was then running rapidly, probably 20 or 25 miles an hour, and could not have been stopped in time to avoid the collision.

There was evidence showing that, if a person was...