Pennsylvania R. Co. v. Moffitt
| Decision Date | 19 September 1924 |
| Docket Number | No. 3377.,3377. |
| Parties | PENNSYLVANIA R. CO. v. MOFFITT. |
| Court | U.S. Court of Appeals — Seventh Circuit |
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Walter J. Gunn, of Danville, Ill., for plaintiff in error.
Thos. A. Graham and Chas. Troup, both of Danville, Ill., for defendant in error.
Before ALSCHULER, EVANS, and PAGE, Circuit Judges.
ALSCHULER, Circuit Judge (after stating the facts as above).
The salient contentions for reversal of the judgment are that the evidence fails to show negligence on the part of the company and that from all the evidence contributory negligence in driving the automobile affirmatively appears.
That this was a crossing highly and extraordinarily dangerous to travelers approaching it from the south must be conceded, and of course no one knew this better than the company itself. The location of its block tower involves an engineering question, which it was the company's right and duty to solve, and while it may not have been negligence on its part to place and maintain it there, nor indeed to leave the embankment so that it will tend to obstruct view and sound of approaching trains, yet under these conditions of hazard it must manage its trains with some view of minimizing the special danger there to the traveling public.
It is charged that the statutory whistle and bell signals were not given. There was evidence tending to show they were not. Perhaps, had we been triers of the facts, our conclusion would have been that the evidence showed they were given. But do not the circumstances suggest something more than complying with the statutory requirement? Here was a belated train, drawn by two locomotives, approaching a place of extraordinary danger at a speed which a mature witness residing next to the right of way characterized as the swiftest she had ever seen, with full knowledge on the company's part that the train would be at the danger point more quickly than ordinarily, and it might have been considered negligent management of the train not to give a signal further back than the statutory 80 rods, or not to make it so loud and prolonged that the sound would be more likely to be heard; and under these circumstances, with these two locomotives supplying the power propelling this long train at such speed, it might well have been regarded as a requirement of ordinary care that on approaching this point of extraordinary hazard the whistles of both locomotives be sounded continuously until this place was reached, and failure to do so might by the jury have been regarded as negligent running and management of the train under the indicated circumstances.
The right generally to run through the country at such a rate of speed as the company sees fit may be conceded. At the same time extraordinary circumstances may be readily conceived under...
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