New York Central Railroad Company v. Chernew

• Decision Date: 23 December 1960
• Docket Number: No. 16532.,16532.
• Citation: 285 F.2d 189
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: NEW YORK CENTRAL RAILROAD COMPANY, a Corporation, Appellant, v. Ann CHERNEW, Administratrix of the Estate of Stanley Z. Chernew, Deceased, Appellee.

285 F.2d 189 (1960)

NEW YORK CENTRAL RAILROAD COMPANY, a Corporation, Appellant, v. Ann CHERNEW, Administratrix of the Estate of Stanley Z. Chernew, Deceased, Appellee.

No. 16532.

United States Court of Appeals Eighth Circuit.

December 23, 1960.

Arthur Litz, St. Louis, Mo., for appellant and Wilton D. Chapman and Thomas W. Chapman, St. Louis, Mo., on the brief.

Don B. Sommers, St. Louis, Mo., for appellee.

Before VAN OOSTERHOUT and BLACKMUN, Circuit Judges, and REGISTER, District Judge.

REGISTER, District Judge.

Appellee (hereinafter referred to as plaintiff) brought this action to recover from appellant (hereinafter called defendant) under the wrongful death statute of the State of Ohio for damages resulting from the death of plaintiff's decedent, Stanley Z. Chernew, following a collision on November 5, 1957, between decedent's automobile and defendant's train at the intersection of a grade level railroad crossing and U.S. Highway 40 at a point approximately one mile west of the city of Lewisburg, Ohio. Plaintiff is the mother and administratrix of the estate of decedent. At the location here involved Highway 40 runs in an east-west direction; defendant's tracks cross said highway in a northwest-southeast direction. Plaintiff's decedent was traveling east and, at the crossing described, collided with defendant's northwest bound train. Mr. Chernew died as a result of injuries resulting from said collision.

U.S. Highway 40 in the area involved is a heavily traveled, hard-surfaced two-lane road. On November 5, 1957, it had been raining heavily prior to the accident and, at the time of the accident (approximately 10:30 a. m.), a light rain was falling; also, it was foggy, with visibility reduced to approximately one-quarter mile. At a point about 440 feet west of the crossing there was painted on the surface of the highway, in the eastbound lane, a large white "X", together with the letters "RR"; similar markings appeared on a "target sign" located on the south shoulder of the highway at approximately the same distance from the crossing. When unobstructed, such warning signs were ordinarily visible for a distance of about 200 feet to the west thereof. No signs or warnings appear on the surface of the westbound, or north, lane of the highway. At a point 440 feet west of the crossing, the crossing itself is not visible to a motorist traveling east; it does become visible to such motorist at a point approximately 200 feet west of said crossing. From the surface painted sign, the highway gradually rises to the east, for approximately 250 feet, to the top of a knoll. The vertical rise of the highway within that distance is approximately five and one-half feet. A large, two-story farmhouse is located near the south side of the highway about 200 feet west of the crossing, where the slope of the highway crests. This farmhouse, along with a barn and other out-buildings, obscures an eastbound traveler's view to the southeast. Such view was also obscured, at the time here involved, by trees and a field of tall corn growing on land to the east of the farm buildings, and by weeds. Suspended above the crossing were two lighted amber lights and on each side of the crossing was an old, rather dilapidated "cross-buck" railroad crossing sign. Such amber lights, in the State of Ohio, are commonly used over railroad crossings or dangerous intersections.

Shortly before the accident, decedent had passed an eastbound automobile driven by witness Owen, at a point where the "X" marking on the surface of the highway and "target" sign on the south shoulder were located. The maximum speed limit in Ohio is sixty miles per hour. At the time decedent passed Owen the latter was traveling between 35 and 45 miles per hour and decedent was traveling approximately ten or fifteen miles per hour faster. At the place where Owen was passed, the tips of the "cross-buck" sign and the amber lights were visible. There is no indication that decedent attempted to slacken his speed until immediately prior to the accident, when Owen saw decedent's brake lights go on, and at about the same instant saw the engine of defendant's train move into the crossing. Decedent's automobile turned to the right, struck the engine, and came to rest on the south side of the highway.

Owen was familiar with the highway and knew the location of the crossing. At and prior to the time of the collision the front windows on Owen's car were lowered four or five inches. He testified he heard no warning by bell, whistle or otherwise of the approach of the train, and did not know the train was in the vicinity until he saw the front end of the engine as it moved onto the crossing just prior to the collision.

The Ohio statute (Section 4955.32, Revised Code) provides in part:

"* * * When an engine in motion and approaching a turnpike, highway, or street crossing or private crossing where the view of such crossing is obstructed by embankment, trees, curve, or other obstruction to view, upon the same line with the crossing, and in like manner where the railroad crosses any other traveled place, by bridge or otherwise, the engineer or person in charge of such engine shall sound such whistle at a distance of at least eighty and not further than one hundred rods from such crossing and ring such bell continuously until the engine passes the crossing. * *"

Members of the train crew testified that the bell and whistle warning signals were given in accordance with the requirements of the statute, and that, in addition, the headlight of the engine was burning. The engineer testified that just prior to the collision the train was traveling 25 to 28 miles per hour, but upon his seeing the collision was imminent, emergency brakes on the train were applied, and the speed reduced, at the time of impact, by about three miles per hour. Decedent's automobile struck the left side of the engine and knocked off the main air reservoir; the effect thereof was to release the brakes previously set, and the train came to a stop some four to five hundred feet from the collision site.

The evidence established that at 60 miles per hour on wet pavement the shortest distance in which an automobile could be stopped, including reaction time, was 296 feet; at 55 miles per hour the distance would be 250 feet; and at 50 miles per hour the distance would be 215 feet. The evidence further established that on dry, level, concrete pavement the shortest distance within which an automobile traveling 45, 50, 55 and 60 miles per hour can be brought to a "panic" or "emergency" stop (i. e., a stop so sudden as to be without regard for the safety of passengers) is, respectively, 136½ feet, 175 feet, 205½ feet and 244 feet.

After plaintiff rested her case defendant filed a motion for directed verdict which was, after argument, denied by the trial court. At the close of all the evidence defendant again moved for a directed verdict on the grounds that plaintiff had failed to make a submissible case for the jury, and that decedent was guilty of contributory negligence as a matter of law. This motion, too, was overruled, and the jury returned a verdict for plaintiff in the sum of $15,000. Defendant's motion to set aside the verdict and enter judgment in accordance with its motions for a directed verdict was subsequently overruled, and defendant perfected its appeal to this Court.

Plaintiff's cause of action is based upon alleged negligence of the defendant in two respects: (1) Failure on the part of the defendant to provide adequate warning signals of the presence of the railroad crossing, and (2) failure to give an adequate signal by bell or whistle of the approach of the train at the time here involved. Proof was submitted on both theories and the trial court's instructions included the law concerning both. Defendant denied the alleged negligence, and contended that the decedent was guilty of contributory negligence; the jury was properly instructed as to the law relating to such defense.

It is conceded that defendant was in compliance with the statutory requirements as to the placing of signals warning the traveling public of the crossing. Defendant contends that, as to this phase of the case, all it was required to do was to comply with the requirements of the Public Service Commission of Ohio — that this particular crossing was not extra-hazardous, and that there was no duty to post safeguards in addition to those required by said Commission.

The questions raised on this appeal must be determined in accordance with the substantive law of the State of Ohio. Detroit, T. & I. R. Co. v. Yeley, 6 Cir., 165 F.2d 375. The evidence must be construed most strongly against the defendant. Hood v. New York, Chicago & St. Louis R. Co., 166 Ohio St. 529, 144 N.E.2d 104. In this connection defendant contends that failure on its part to do more than required by Ohio statute, or the orders of the Ohio Public Service Commission, cannot be considered as evidence of negligence for the reason that its duty is limited to compliance with the minimum of such statutory or regulatory requirements. Of course, if this is the law in Ohio, then this Court is bound thereby. However, as stated by the Supreme Court in Grand Trunk Railway Company v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485, such contention would be in conflict with fundamental principles of the law of negligence obtaining in many other states. In Ives, supra, at page 427, 12 S.Ct. at page 686 it is said:

"The underlying principle in all cases of this kind which requires a railroad company not only to comply with all statutory requirements in the matter of signals, flagmen, and other warnings of danger at public crossings, but many times to do much more than is required by positive enactment, is that neither the legislature nor railroad commissioners can arbitrarily determine in advance what shall constitute ordinary care or reasonable prudence in a railroad company at a

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