Pennsylvania R. Co. v. Swartzel

• Decision Date: 21 March 1927
• Docket Number: No. 3814.,3814.
• Citation: 17 F.2d 869
• Parties: PENNSYLVANIA R. CO. v. SWARTZEL.
• Court: U.S. Court of Appeals — Seventh Circuit

17 F.2d 869 (1927)

PENNSYLVANIA R. CO. v. SWARTZEL.

No. 3814.

Circuit Court of Appeals, Seventh Circuit.

March 21, 1927.

Fred E. Zollars, of Ft. Wayne, Ind., for plaintiff in error.

Edw. O. Snethen, of Indianapolis, Ind., for defendant in error.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

PAGE, Circuit Judge.

A jury awarded plaintiff, defendant in error, damages under his complaint against defendant, plaintiff in error. The injury to plaintiff arose from a collision between plaintiff's truck and defendant's train at a public highway crossing. One paragraph of the complaint alleges negligent operation of the train, and the other paragraph charges negligence under the "last clear chance" doctrine.

The tracks of defendant's railroad were about 4 feet higher than, and 50 feet north of, an east and west paved highway. At least a quarter of a mile east of a point where defendant had a coal chute over its tracks, near the town of Wanatah, Ind., was a north and south road, into which plaintiff, proceeding east with his truck loaded with gravel, turned north. At the turn he stopped, shifted his gears to low, and then proceeded up an incline of one-inch in twelve, at the rate of about 5 miles per hour to the most southerly of defendant's three tracks to the point of collision. Where the turn was made, there was nothing to obstruct a view of the tracks, except a line of telegraph poles on the right of way. A little closer to the tracks, there was a clear view west to the coal chute and beyond.

At the time of the accident, plaintiff was 57 years old, and lived in a hotel in Wanatah. He owned the truck which he was driving, and was an experienced driver. He had passed over the crossing many times, and knew that the north track was for west-bound trains, the south track for east-bound trains, that the middle track was a passing track, and that trains passed over those tracks at least every half hour during the day. His hearing was good, and his sight was so good that he could see an automobile a mile away. At the time of the accident, there was a strong wind from the west.

As plaintiff approached the tracks, he could have stopped his truck within 2 feet. After he made the turn, he looked several times down the tracks to the west, until he was within 10 feet of the tracks; he did not look again after that.

The colliding train was proceeding east on the south track at 25 miles per hour. It consisted of 5 cars, drawn by an engine that was moving backward; that is, the front, or pilot, end of the engine was attached to the cars. The engineer was at his station on the north side of the engine, and the fireman was at his station on the south side of the engine. The fireman saw plaintiff from a point 200 or 300 yards west of and up to the point of collision. When the train was within about 60 feet of the crossing, the fireman saw the plaintiff's truck, then about 10 feet from the crossing, and, in response to the fireman's directions, the engineer immediately applied the emergency brakes. That operation took about 30 seconds.

Between plaintiff's statements in an examination before the trial and his testimony at the trial there are many irreconcilable contradictions upon material points; but between his testimony at the trial and that of the other witnesses there is no contradiction, except upon one point. Plaintiff said that on the south, or east-bound, track there was, just to the west of the point of collision, a cut of some 25 cars, with which there was neither engine nor crew. He saw and in his testimony described accurately the train which struck him, but says that it was standing still, 100 feet west of the crossing on the middle track. The train which he describes, as all other witnesses described it, was on the south or the east-bound track when it struck him. Nobody else saw any unattached cars on the south tracks. Two fast, through, east-bound trains had just passed over that track.

There is no credible evidence from which it can be inferred that there was a cut of cars on the south track, or that plaintiff saw any train on the middle track, standing still, 100 feet west of the crossing.

The engineer and fireman both testified, positively, that they complied with the law in ringing the bell and blowing the whistle upon the engine. That testimony could not be fairly overcome by the fact that others in various positions said that they did not hear either.

The evidence shows that plaintiff was so clearly guilty of contributory negligence in going upon the tracks that, as a matter of law, there could be no recovery under the first paragraph of the complaint. That seems to be practically conceded, but it is sought to sustain the recovery upon the "last clear chance" doctrine, and the...