Mearns v. Baltimore & O.S.W.R. Co.
| Decision Date | 12 September 1922 |
| Docket Number | 3076. |
| Citation | 284 F. 31 |
| Parties | MEARNS v. BALTIMORE & O.S.W.R. CO. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Rehearing Denied October 14, 1922.
The action was against defendant in error railroad company to recover damages for causing death of Charles Mearns. Declaration of three counts charged: (1) Company's negligent operation of train; (2) duty and failure of company to give signal or warning of the movement of its train across street; (3) failure of company to comply with statutory requirements to ring bell or sound whistle before its train crossed public highway.
Deceased was a farmer, who had for about seven years also operated a threshing machine during threshing season, a man of about 48 active in business and in good health. October 4, 1920, he was threshing, and between 6:30 and 7 p.m., after his day's work, was returning home driving his Ford auto truck through the city of Flora, Ill. (a place of about 3,000 people), and as he was crossing the company's railroad track there the auto was struck by a box car moving along the track, causing his death.
The company's main track runs east and west through the city. It is crossed by a north and south branch track of same company, and just east and north of the intersection is the depot. Nearly a block west of the depot is a much-traveled north and south street, one of the principal streets of the city. This street is crossed by the east and west main track and by a long parallel passing track just south of it, and a little farther south by a Y track, which connects the branch track at a point 200 or 300 feet south of the depot, with the passing track at a point about 100 feet west of the street; the curve of the Y track being toward the depot. In the traveled or middle part of the street there are the usual plank crossings over the tracks, being from 15 to 18 feet lengthwise of the tracks, and extending one plank outwardly from each track. The track in the street east and west of the plank crossings was gravel-ballasted in the usual way.
Mearns was driving the truck, one of his men sitting on the seat with him, and his three other employees on a box back of the seat. As he approached the tracks from the south a long freight train was crossing the street, moving west on the middle or passing track, and he stopped 15 or 20 feet south of the Y track. At the same time there was upon the Y track a cut of 15 to 18 box cars, occupying the entire Y track east of the street, and extending a considerable distance south on the branch track, which cars had been run on the Y track from the passing track in order to permit the freight train to move along the latter. The westerly box car on the Y track extended west on the street, and partly across the planking. When the freight had passed Mearns started to drive across the Y track, and while on it the cars started west striking the truck before it got across.
One of the sharply controverted questions was whether the west car on the Y track extended so far across the planking as practically to block the crossing to normal and usual travel. The four men with Mearns testified positively that the west 8 or 10 feet of the plank crossing was unobstructed, and that in driving upon the track after the freight had passed, Mearns went straight along in the same course in which he had approached the track, without turning west to avoid the car, and that the truck came within about 2 feet of the end of the car and about 3 feet from the end of the plank, not leaving the plank until forced by the moving car. Another witness, who crossed from the north just before the freight train came along, testified that he crossed the passing track just before the freight reached the crossing, stopped to see if he could cross the Y track, saw no engine attached to the cars, and testified that there was 10 feet or a little less of clear planking, and that he thereupon crossed without difficulty on the plank, going to his home on the same street a few hundred feet south of the tracks. Five of defendant's employees testified to having examined the place right after the accident, and that from the tire tread marks on the road leading to the crossing the west wheels of the truck as they went toward and upon the...
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Garrett v. Pennsylvania R. Co.
...not call for its submission to a jury. Small Co. v. Lamborn & Co., 267 U. S. 248, 254, 45 S. Ct. 300, 69 L. Ed. 597; Mearns v. B. & O. S. W. R. (C. C. A.) 284 F. 31. It seems to the writer, however, that the evidence, inferences and presumptions in the instant case necessitated their submis......