Lehigh Valley R. Co. v. Kilmer

• Decision Date: 14 March 1916
• Docket Number: 202.
• Citation: 231 F. 628
• Parties: LEHIGH VALLEY R. CO. v. KILMER.
• Court: U.S. Court of Appeals — Second Circuit

231 F. 628

LEHIGH VALLEY R. CO. v. KILMER.

No. 202.

United States Court of Appeals, Second Circuit.

March 14, 1916

[Copyrighted Material Omitted]

Cobb Cobb, McAllister & Feinberg, of Ithaca (Riley H. Heath, of Ithaca, of counsel), for plaintiff in error.

Hiscock Doheny, Williams & Cowie, of Syracuse, for defendant in error.

Before COXE, WARD, and ROGERS, Circuit Judges.

ROGERS Circuit Judge.

This is an action to recover for injuries sustained by the plaintiff below in attempting to cross in an automobile the tracks of the defendant company at what is known as the Swarthout crossing, near Valois, N.Y. The automobile was struck by a locomotive drawing a passenger train. The plaintiff was acting at the time as chauffeur for an automobiling party including three other persons: Edgar A. Emens, who is professor of Greek in Syracuse University, his wife, and his sister. The two latter persons received injuries from which they died. Professor Emens and the plaintiff were injured.

At the time of the accident the party was riding in an Oldsmobile, on August 28, 1910. The plaintiff had driven the automobile for about four months, and before that had driven cars for about two years. The party had been to Fayette, and gone from there, by way of Geneva, to Penn Yan. They left the latter place at 2 o'clock in the afternoon on their way back to Fayette, and the accident occurred about 5 o'clock that afternoon. The rear curtain of the automobile was down and the side curtains were off.

The plaintiff had the kneecap of his left knee torn off, and the ligaments were torn loose from the knee and ankle of his leg; the left ankle was strained and wrenched, and the flesh and skin were torn off to the bone on his left shin; the bones of the left lower leg were splintered and bruised; and for a considerable period he was deprived of the use of his ankle and knee. At the trial, almost three years after the accident, he testified that he was unable 'to do hardly anything, only sit around; I cannot use it any in doing hard work; I can't lift anything, only to stand on my right foot alone. ' He said he was unable to run, and that he could walk slowly without limping, but that he limped badly if he walked above a moderate gait. Three times since the accident the kneecap had slipped out of place, had slid out bad enough to let the knee water off the joint. 'On each of those three occasions, when the cap has been dislocated enough to flow the water, it has swollen until it filled my trouser leg very nearly. I wear bandages on it yet. ' He also testified that his knee pained him all the while. The surgeon and physician who treated him testified that when he first saw his knee it was twice the normal size; that he thought his condition at the time of the trial was a permanent one, and that any strain like heavy lifting or pushing was liable to throw the kneecap out, and that running or fast walking was liable to have the same effect; that the condition of his knee would grow worse as he got older; that he thought it would be necessary for him to wear bandages in order to obtain any use of it during the rest of his life.

It is not necessary for us to consider at any length the negligence of defendant. The plaintiff proved that the engine gave no signal by bell or whistle until it gave the danger signal, two short blasts and two long ones, given just before or just as the engine struck the automobile. There were eight competent and disinterested witnesses, farmers and residents of the neighborhood, who testified positively that no bell rang and no whistle blew until the danger signal sounded. In addition a number of witnesses stated that they heard no bell or whistle. The evidence to the contrary given by the engineer and fireman and others evidently did not impress the jury.

In almost every state it is made by statute the duty of an engineer, in approaching a crossing, to sound his whistle, or ring his bell, or both. Where the statute imposes the duty, the failure to comply with it is negligence per se. Unless the duty is imposed by statute, the failure to give such signals is not as matter of law a neglect of duty. In such a case the failure to give the signals would be a question of fact for the jury to decide whether, under the circumstances, the omission amounted to a failure to exercise due care. In New York the General Railroad Act of 1850 made a railroad company liable for all damages sustained by the failure of an engineer to ring the bell or sound the whistle upon approaching a highway crossing. In 1886 the prior act was repealed. In a case which came before the Court of Appeals in 1892 the court, referring to this matter in Vandewater v. New York & New England Railroad Co., 135 N.Y. 583, 588, 32 N.E. 636, 637 (18 L.R.A. 771), said:

'Of course, the companies still owe a duty to the public at such crossings, as elsewhere. The duty is to run their trains with care and caution, and when they cross such roads it may well be that the failure to give due warning by whistle or bell, or in some other way, would be held, under all the circumstances, to be a failure to manage and run their train with proper care and caution, for which they would be liable to a party injured, if otherwise entitled to recover. Even when compelled by statute to make such signals, it is not necessarily a defense in all cases to prove that they were made. The making of the signals is the least the company can do, and in a given case it might not be enough. ' Harty v. Railroad, 42 N.Y. 468; Thompson v. Central Hudson R.R. Co., 110 N.Y. 636, 17 N.E. 690.

In the case at bar the trial judge instructed the jury as follows:

'In determining whether the defendant railway company was negligent or not, you must remember that it was the legal duty of the defendant to give some adequate or suitable warning of the approach of the train in question to the Swarthout crossing, where the accident occurred, and that at a suitable distance therefrom to give warning. As to the speed of the train, it was the duty of the defendant to run the same at such a rate of speed, and to have this train under such control, and to give such warnings in approaching the highway crossing, as to avoid doing unnecessary damage to those lawfully and properly using the same or about to use the same.'

We find no error in the instruction in this particular, and the verdict has established the fact that the defendant was negligent. The failure of the engineer to sound the whistle or ring the bell did not relieve the plaintiff from the necessity of taking ordinary precautions for his and his party's safety. The negligence of the defendant's employes would not excuse his negligence. Schofield v. Chicago, Milwaukee & St. Paul Ry. Co., 114 U.S. 615, 618, 5 Sup.Ct. 1125, 29 L.Ed. 224 (1885).

The failure of one about to cross a railroad track to use due care deprives him of his right to recover damages, if such negligence proximately contributed to the injury, but not otherwise. Shearman & Redfield on Negligence (6th Ed.) vol 2, Sec. 472. Due care in these cases means ordinary care. It implies the use of such watchfulness and precautions to avoid coming into danger as a person of ordinary prudence would use under the same circumstances in view of the danger to be avoided. But no greater care than that is required. Totten v. Phipps, 52 N.Y. 354; Davis v. Concord, etc., R.R. Co., 68 N.H. 247, 44 A. 388. A person is not bound to use extraordinary care or to exercise the best judgment or to use the wisest precaution. Lent v. N.Y. Central, etc., R. Co., 120 N.Y. 467, 24 N.E. 653.

This brings us to inquire whether the plaintiff exercised the care which the law required him to exercise. What the plaintiff did after he got upon the track is not a matter of controlling importance. In such a case as that in which the plaintiff then found himself suddenly put in peril, he is excusable if he made an unwise decision as to what he should do. The rule on this phase of the matter is correctly laid down in Shearman & Redfield (6th Ed.) vol. 1, Sec. 85a, where it is said:

'If one is placed by the negligence of another in such a position that he is compelled to choose instantly, in the face of grave and apparent peril, between two hazards, and he makes such a choice as a person of ordinary prudence placed in such a position might make, the fact that, if he had chosen the other hazard, he would have escaped injury, is of no importance. Even if, in bewilderment, he runs directly into the very danger which he fears, he is not at fault. The confusion of mind caused by such negligence is part of the injury inflicted by the negligent person, and he must bear its consequences.'

What the plaintiff did or did not do before he got upon the track is of greatest importance; and this brings us to inquire whether he exercised the care which the law required him to exercise before he attempted to cross the defendant's tracks. Did he approach the crossing with prudence and care and with senses alert to the possibility of approaching danger? Tolman v. S.B. & N.Y.R. Co., 98 N.Y. 202, 50 Am.Rep. 649.

The plaintiff knew for a distance of half a mile south of the crossing that he was approaching it. When he was about 825 feet from it he shut off the power and let his automobile coast to a point in the vicinity of the Swarthout hitching block, where he brought his car, as he testified, to a full stop. This was at a point 146 feet from the first rail of the west-bound track. He then looked both ways along the tracks and, seeing no sign of a train, started towards the crossing, and continued to look as well as he could, both ways, until he got on the crossing and saw the engine approaching him from about 200 feet away. He heard...