Pere Marquette Ry. Co. v. Anderson

• Decision Date: 07 December 1928
• Docket Number: No. 4008.,4008.
• Citation: 29 F.2d 479
• Parties: PERE MARQUETTE RY. CO. v. ANDERSON.
• Court: U.S. Court of Appeals — Seventh Circuit

29 F.2d 479 (1928)

PERE MARQUETTE RY. CO. v. ANDERSON.

No. 4008.

Circuit Court of Appeals, Seventh Circuit.

December 7, 1928.

Sidney C. Murray, of Chicago, Ill., for plaintiff in error.

William E. Griffin, of Chicago, Ill., for defendant in error.

Before EVANS, PAGE, and ANDERSON, Circuit Judges.

ANDERSON, Circuit Judge.

Defendant in error, as administrator of Mary Anderson, deceased, brought this action for damages for her death, caused by a collision between the coupé in which she was riding and a passenger train of plaintiff in error.

The accident occurred at a crossing of a highway and the railroad, in the state of Indiana. The declaration was in three counts. The first alleged as the act of negligence the failure to install and maintain an automatic signal bell at the crossing; the second alleged that plaintiff in error "drove, managed and operated the train so negligently, carelessly, and improperly" that the train and motor vehicle were brought into violent collision; the third averred as the act of negligence failure to sound the whistle and ring the bell upon the locomotive as required by the Indiana statute.

At the close of the evidence plaintiff in error moved the court to direct a verdict of not guilty on each count. The court sustained the motion as to the first count, but denied it as to the second and third. To this denial plaintiff in error excepted.

As stated, the only negligence averred in the third count was a failure to sound the whistle and ring the bell as the statute required. Upon this issue the engineer and fireman both testified positively that the whistle was blown and the bell rung. The baggageman also testified that he knew of his own knowledge that these signals were given. On the other hand, two witnesses, who were riding in an automobile about 300 feet behind the coupé, testified that they did not hear the whistle or bell. The only other witnesses who spoke on this subject were two passengers on the train, both in the same car. One, plaintiff in error's witness, testified that she heard both the whistle and the bell. The other, defendant in error's witness, testified that he did not remember hearing them.

The statements of the engineer, fireman, and baggageman, that the signals were given, and of the woman that she heard them, may be true; and the statements of the witnesses of defendant in error that they did not hear them, and by one that he did not remember hearing them, may also be true. In Chicago & N. W. Ry. Co. v. Andrews, 130 F. 65, 70, the Circuit Court of Appeals of the Eighth Circuit said: "Where the attention of those testifying to a negative was not attracted to the occurrence which they say they did not see or hear, and where their situation was not such that they probably would have observed it, their testimony is not inconsistent with that of credible witnesses who were in a situation favorable for observation, and who testify affirmatively and positively to the occurrence. There is then no conflict."

In Baltimore & Ohio R. Co. v. Baldwin, 144 F. 53, 54, the Circuit Court of Appeals of the Sixth Circuit said: "The trend of decision seems to be that negative testimony given by witnesses who do not state, or when the circumstances fail to indicate, that they were giving attention and observed at the time that the fact or event did not occur, is not in conflict with positive testimony of witnesses who were present and had equal opportunities for observing that it did occur."

The testimony of the passenger on the train who said he did not remember hearing the signals may be disregarded entirely; and the situation of the witnesses who said they did not hear them emphasizes the weakness of their testimony. They were riding in a Cadillac sedan over a rough and stony road, conversing with each other and two other persons in the sedan, some 300 feet behind the coupé and the photographs introduced in evidence by both parties show plainly that on account of an embankment between them and the on-coming train, and the condition of the road — being rough and stony at that point — they were not favorably situated to hear the signals. It further appears that they were not giving attention to whether the signals were given.

The question is not a new one. It has often been decided. See Bergman v. Northern...