Neininger v. Cowan

• Decision Date: 01 May 1900
• Docket Number: 347.
• Citation: 101 F. 787
• Parties: NEININGER v. COWAN et al.
• Court: U.S. Court of Appeals — Fourth Circuit

101 F. 787

NEININGER v. COWAN et al.

No. 347.

United States Court of Appeals, Fourth Circuit.

May 1, 1900

John A Howard and J. B. Driggs, for plaintiff in error.

Henry M. Russell, for defendants in error.

Before GOFF and SIMONTON, Circuit Judges, and WADDILL, District Judge.

SIMONTON Circuit Judge.

This case comes up by writ of error to the circuit court of the United States for the district of West Virginia. The action was brought by the plaintiff, Frederick W.

Neininger against John K. Cowan and Oscar G. Murray, receivers of the Baltimore & Ohio Railroad Company. The cause of action is injuries received by the plaintiff in a collision with the railroad train of the defendants at a railroad crossing at the intersection of Main and Sixteenth streets, in the city of Wheeling, W.Va. The cause was heard in the circuit court with a jury. Only the testimony on the part of the plaintiff was taken. From this it appeared: That the plaintiff is by occupation a butcher, resident in the town of Bridgeport Ohio. That he had frequent occasion to cross the bridge leading from Bridgeport to Wheeling, and to visit the latter city. The chief purpose of his visit was to purchase meat from the Swift Beef Company, which had a place of business close to the depot of the Baltimore & Ohio Railroad. His visits had been made chiefly in the daytime, towards the afternoon. Several times he had been there in the early morning, about 4 o'clock. On the morning of 23d April, 1896, a little before or about 5 o'clock, he crossed the bridge from Bridgeport, and drove into Wheeling, in a two-horse wagon, covered, with wooden sides. The driving seat was in front of the wagon, and outside of the sides, protected with curtains, which folded up, and which were so folded on this occasion. On the morning in question he entered Main street to the north of Sixteenth street, and the place of the crossing of the railroad track. His horses were trotting, and continued to trot until he got within about 50 or 60 feet of the railroad track, when he pulled his team down to a walk, and, without stopping, continued his course up to and upon the railroad track. Just as he got on the track the train of the defendants which had left the depot a short distance from that point, going east, collided with his horses and wagon, killed one horse, injured another severely, smashed the wagon, threw him out on the pavement, and inflicted very serious injuries upon him, from which he has only partially recovered. The point of collision was the railroad crossing at the intersection of Main and Sixteenth streets. The plaintiff, in his wagon, approached this point, passing on the west side of Main street, between the curb of the pavement and the track of the Wheeling Street-Railway Company. The distance between this curb and this railway is 19 feet 4 inches. On this side of Main street, at the corner of Main and Sixteenth streets, there is a two-story building, and on Main street, next adjoining, are two other brick buildings, of two stories each. These prevent any one from seeing on the railroad track until he comes within 10 feet of the track, and from that point he can see about 64 feet on the railroad track. Had he gone on the east side of Main street, he could have had, from a point 18 or 20 feet from the railroad track, an unobstructed view of the track from every direction. The ordinances of Wheeling provided that this Baltimore & Ohio Railroad Company should erect and maintain in good order a gate at this crossing, properly managed by a watchman. It was further provided that, until gates should be erected and put in operation, no railroad company should run a train through the city at a greater speed than 4 miles an hour, and, after the gates were so put up and in operation, at a greater speed than 6 miles an hour. The railroad company had, some years before this accident, erected and maintained a gate at this point; but it had been removed more than a year before this, and no gate had thereafter been constructed. The testimony showed that the railroad company, in the daytime, had a man with a flag at this place to give warning of approaching trains, and plaintiff had seen this precaution taken. On the morning in question, which was just about daybreak, they had no such flagman stationed at that point. There is some confusion in the testimony as to the speed with which the train was moving. Some of the witnesses say at 15 miles an hour; some, as low down as 4 miles an hour. As soon as the accident occurred, the train was stopped, and when stopped it had passed the place of the accident the length of the locomotive and tender, and a large part of the baggage car. The plaintiff did not stop his wagon. He says that he listened for a train, and heard neither the bell nor whistle, nor the puffing of the engine, nor the noise of the train. Any sound which could come to him would be obstructed by the buildings on Main street, which were between him and the coming train. There is no evidence that any bell was rung or whistle sounded. One of the witnesses speaks of the puffing of the engine so loud as to induce the belief that they were going up a grade. The law of West Virginia requires a bell or steam whistle to be sounded by every locomotive at a distance of at least 60 rods from any place where the railroad crosses any public street or highway. At the close of the plaintiff's testimony, and after argument, the court instructed the jury to find for the defendant, because of the negligence of the plaintiff, which contributed to the injury. Thereupon plaintiff excepted, a writ of error was allowed, and the case in here on assignments of error as follows: Because the court erred in sustaining the motion of the defendants to exclude the plaintiff's testimony, and directing the jury to find a verdict for defendants; because the court erred in overruling plaintiff's motion to set aside the verdict and grant a new trial, and in rendering judgment for the defendants; because the court erred in holding that the plaintiff, on facts shown by the testimony set forth in the bill of exceptions, was guilty of contributory negligence. The first and third grounds of exception will be considered. The second assignment of error cannot be considered here. Railway Co. v. Struble, 109 U.S.,at pages 384, 385, 3 Sup.Ct. 270, 27 L.Ed. 970.

The court instructed the jury to find for the defendant. This it was competent to do. 'It is now the settled rule in the courts of the United States that when, on the trial of a civil case, it is clear that the state of the evidence is such as not to warrant a verdict for a party, and that if such verdict were rendered the other party would be entitled to a new trial, it is the right and duty of the judge to direct the jury to find according to the views of the court. Such is the constant practice, and it is a convenient one. It saves time and expense. It gives scientific certainty to the law in its application to the facts, and promotes the ends of justice. ' Bowditch v. Boston, 101 U.S. 18, 25 L.Ed. 980; Griggs v. Houston, 104 U.S. 533, 26 L.Ed. 840; Montclair v. Dana, 107 U.S. 162, 2 Sup.Ct. 403, 27 L.Ed. 436.

In Elliott v. Railway Co., 150 U.S. 245, 14 Sup.Ct. 85, 37 L.Ed. 1070, it is held:

'Though questions of negligence and contributory negligence are ordinarily questions of fact to be passed upon by a jury, yet, when the undisputed evidence is so conclusive that the court would be compelled to set aside a verdict returned in opposition to it, it may withdraw the case

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