Norfolk & W. Ry. Co. v. Norton Iron Works

• Citation: 279 F. 32
• Decision Date: 07 March 1922
• Docket Number: 3611.
• Parties: NORFOLK & W. RY. CO. v. NORTON IRON WORKS.
• Court: U.S. Court of Appeals — Sixth Circuit

279 F. 32

NORFOLK & W. RY. CO. v. NORTON IRON WORKS.

No. 3611.

United States Court of Appeals, Sixth Circuit.

March 7, 1922

Homer E. Holt, of Huntington, W.Va. (Holt, Duncan & Holt, of Huntington, W. Va., on the brief), for plaintiff in error.

H. R Dysard, of Ashland, Ky. (Dysard & Adamson, of Ashland, Ky on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

The parties below had the same relation as here. A passenger train of plaintiff railway company (then under federal control) collided head on with a truck owned by defendant iron works (while driven by the latter's employee) at a highway crossing, causing damage to the railway equipment and killing the driver of the truck. Plaintiff charged negligence of the truck driver in approaching and attempting to cross the track without looking or listening for the approaching train. Defendant denied negligence on the driver's part asserted contributory negligence by plaintiff, and sought by counterclaim to recover its damages by reason of its liability to its employee under the statutes of Kentucky. The collision occurred in Ohio, at a point about three-fourths of a mile east of Franklin Furnace station, on the east-bound or southerly of the two tracks extending from Portsmouth, Ohio to Kenova, W.Va. The track was nearly straight (one degree curve) for a distance of 1,800 feet west of the highway crossing. The highway, which lay about 300 to 400 feet north of the railroad, ran nearly parallel thereto for this 1,800 feet or more, until shortly before it crossed the railroad track, when it turned somewhat more sharply to the south, crossing the railroad tracks on a diagonal. The shortest perpendicular distance between the two railroad tracks was 26 feet; the distance on the diagonal highway 70 feet. The truck was traveling about 2 miles, and the railway train 50 to 60 miles, an hour. The evidence showed that the driver of the truck did not look or listen before attempting to cross the track. The fireman's potential view of the highway, and thus of the truck, was generally uninterrupted for a quarter of a mile or more before the collision. Neither he nor the engineer saw the truck previous thereto. The trial judge was of opinion that both plaintiff and defendant were guilty of negligence, and directed verdict for defendant. Plaintiff brings error.

In our opinion plaintiff is not entitled to complain of this direction. The operation of the train was subject to the police regulations contained in the Ohio railroad statutes. By section 8853 of the General Code of Ohio the engineer (or person in charge) is required to sound the whistle 'at a distance of at least 80 and not further than 100 rods from' a highway, and to ring such bell 'continuously until the engine passes the crossing. ' By section 8856 the railway company is made 'liable in damages to a person or company injured in person or property by such neglect or act of such engineer or person. ' By section 12549 the failure on the part of the person in charge 'to sound the engine whistle' at a distance 'of not more than 100 nor less than 80 rods from such crossing or to ring the engine bell continuously from such distance until the engine and cars attached thereto have passed such railroad crossing' subjects the offender to fine or imprisonment or both.

This court has construed sections 8853 and 8856 as making the failure to so sound whistle and ring the bell negligence per se. Rothe v. Pennsylvania Co., 195 F. 21, 24, 114 C.C.A. 627. And see Hales v. Mich. Central R.R. Co., 200 F. 533, 536, 118 C.C.A. 627. It affirmatively appeared by the testimony of the fireman, and without contradiction, that the statutory requirements with reference to ringing the bell were not complied with. He testified that after he passed the Franklin Furnace crossing (three-fourths of a mile west of the highway crossing) he put in three or four shovels full of coal; that this occupied 'probably 30 seconds, maybe a minute'; that he then rang the bell for say '10 or 15 seconds'; that he then started to put in more coal, and was so occupied for '5 or 10 seconds' and until the collision occurred. (The train was running about 75 feet or more per second.) The bell was operated by hand, and was not rung while the fireman was stoking, nor could he during those periods see the highway crossing. At 50 miles an hour it would have taken the train about 53 seconds to run from Franklin Furnace to the highway crossing. The trial judge thought the fireman grossly negligent in so interrupting his lookout by firing when 'approaching a crossing of that character at that high...