Pennsylvania R. Co. v. Shindledecker, 5546.
| Decision Date | 05 November 1930 |
| Docket Number | No. 5546.,5546. |
| Parties | PENNSYLVANIA R. CO. v. SHINDLEDECKER. |
| Court | U.S. Court of Appeals — Sixth Circuit |
G. R. Effler, of Toledo, Ohio (Fraser, Hiett, Wall & Effler, of Toledo, Ohio, on the brief), for appellant.
C. L. Deeds, of Toledo, Ohio (Deeds & Cole, of Toledo, Ohio, on the brief), for appellee.
Before DENISON, HICKS, and HICKENLOOPER, Circuit Judges.
This is a case of injury to an automobile truck driver at a highway-railway crossing. The only open question is whether a verdict for defendant should have been instructed, because of plaintiff's contributory negligence.
In answer to special questions submitted pursuant to our suggestion in Penna. R. R. v. Stegeman, 22 F.(2d) 69, 72, the jury found that an automatic crossing bell, which should have been set ringing by the approaching train, was not ringing, and that the plaintiff did stop, look, and listen at the properly effective point. For the purposes of this opinion, but without deciding, we may assume that the latter special finding by the jury was inconsistent with the undisputed evidence because, if the supposed view-obstructing cars were where defendant's proofs place them, they did not obstruct, and, if they were where plaintiff says they were, they shut off his view so that he could not look effectively. We further so assume that the existence of possible danger upon the tracks being crossed before coming to the one actually dangerous, and the roughness of the roadway, and the necessity of watching automobiles coming from the opposite direction, did not excuse plaintiff from looking more carefully to his right. We place the affirmance of the submission solely upon the effect of the silent crossing bell in lessening plaintiff's otherwise unescapable obligation to have discovered in time the approaching train, and in therefore so far mitigating his undoubted lack of possible care as to make it a question of fact rather than of law whether his conduct was reasonably prudent. Wabash Ry. v. Glass (C. C. A. 6) 32 F.(2d) 697, 699.
We have many times considered this question, the last in Leuthold v. Pa. R. R., 33 F. (2d) 758. The general rule there stated is not questioned by appellant's counsel; they distinguish that case from this only because they say that here plaintiff's reliance upon the silent bell, as in the nature of an invitation to cross, did not sufficiently appear. True, plaintiff as a witness did not, in so many words, state that...
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