Philadelphia & R.R. Co. v. Peebles

• Decision Date: 03 May 1895
• Docket Number: 1.
• Citation: 67 F. 591
• Parties: PHILADELPHIA & R.R. CO. v. PEEBLES.
• Court: U.S. Court of Appeals — Third Circuit

67 F. 591

PHILADELPHIA & R.R. CO. v. PEEBLES.

No. 1.

United States Court of Appeals, Third Circuit.

May 3, 1895

James J. Bergen, for plaintiff in error.

James L. Griggs, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District judge.

BUFFINGTON District Judge.

On April 26, 1892, John Peebles was killed by the Royal Blue Line express train of the Philadelphia & Reading Railroad while crossing the track at a point near Weston, N.J. His administratrix brought suit for damages, and recovered a verdict in the circuit court of the United States for the district of New Jersey. To the judgement entered thereon, the defendant company has sued out a writ of error to this court.

The facts of the case are as follows: The track runs in a straight line for several miles, and passes through a cut about 1,100 feet east of the crossing where the accident occurred. From the cut to the crossing it has an elevation of a couple of feet above the surrounding country. The road upon which the decedent was traveling runs parallel with the railroad for several hundred feet west of the crossing, and distant about 200 feet therefrom. Nearly opposite the crossing and when about 165 feet distant, it turns an oblique angle, and crosses the track upon a slight rise. On the same side of the track, and about 500 feet east of the crossing, was a tool house, 9 feet 6 inches high, 12 feet 6 inches wide, and 9 feet 7 inches long. Until within about 60 or 65 feet of the track, there was an unobstructed view of the track eastwardly for about 1,500 feet. For the next 40 feet it was claimed the tool house obstructed the view. For the next 20 feet, and until the track was reached, there was an unobstructed view of the track for 1,500 feet. The decedent was a farmer living about a mile from the crossing; was familiar with and had traveled the road often. On the afternoon in question, he came along it alone, in a one-horse buggy. The day was clear, and noise was carried a long distance. He was about 65 years of age was slightly deaf. His horse was stubborn, hard in the mount and hard to back, and his buggy curtains were down. He approached the crossing about the regular passing time of the Royal Blue Line train, which was one of the regular trains, well known, and which ran at the highest speed, reaching as high as 60 miles per an hour. The plaintiff's proofs do not show whether he stopped or took any precaution whatever. His horse cleared the track, the buggy was struck, and the decedent instantly killed. In the declaration, the only negligence alleged was the careless and negligent driving of the train at great speed over the crossing, without whistling or ringing a bell, the statute of New Jersey on that subject providing:

'Every incorporated company that has been or hereafter may be authorized to construct any railroad in this state, shall cause to be placed on some part of every locomotive engine used by such company a bell, of a weight of not less than 30 pounds, or a steam-whistle which can be heard distinctly at a distance of at least 300 yards, and shall cause such bell to be rung, or such steam-whistle to be blown, at a distance of at least 300 yards from the place where such railroad crosses such highways.'

There was a whistle post for the crossing just west of the cut, 1,000 feet from the crossing.

At the close of the case, the defendant asked for binding instructions in its favor. This request was refused, and the case submitted to the jury in a charge to which error has been assigned. While the view we take of the case upon the question of the defendant's right to binding instructions is such as to render needless a discussion of the alleged subsequent errors of the court in the charge, yet we may say referring to the eleventh assignment of error, that, had the case been one proper to submit to the jury, the court erred, in our opinion, in assuming that the tool house was an obstruction to one traveling the road, and in so charging the jury.

Returning, however, to the prior question, did the court err in refusing the request for binding instructions? If the evidence was of such a conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in plaintiff's favor, then this instruction should have been given. Railroad Co. v. Converse, 139 U.S. 472, 11 Sup.Ct. 569, and cases cited. Tested by this rule, we think the duty of the court to affirm this point was plain. The proofs adduced by the plaintiffs showed him guilty of contributory negligence, for, from the facts that are affirmatively shown on the plaintiff's side, we think but one conclusion can be reached. This testimony showed the plaintiff was familiar with the crossing, and had been going over it for years. The train was a regular schedule one, one of the best known on the road, ran at an exceedingly high rate of speed, and was on time. The decedent was slightly deaf. His horse was hard in the mouth, somewhat stubborn, and hard to back. The side curtains of his buggy were down. The road was fenced in and led by an ascent beginning 30 feet away to the track. A ditch at the one side prevented him from turning when near the track. Sixty feet from the track to within twenty feet of it, his view was alleged to be obstructed by the tool house, 500 feet above. At 20 feet he had a view to the cut.

Plaintiff's witness Merrell says:

'Q. And, before you drive on the track, you could look down the road a long distance, after you pass the point where you claim this tool house interferes? A. Certainly; you can stop there and look.'

A duty rested on the decedent, under the circumstances, of taking the ordinary precautions to insure his own safety. Lack of care by the defendant's servants, if such there was, did not relieve the decedent from care on his part. He was bound to use his senses before attempting to cross the track. The very presence of a railroad conveyed to him, as a prudent man, notice of danger. If he neglected to use his senses, and thoughtlessly or rashly attempted to cross without doing so the result, if disastrous, cannot be visited on the railroad, though it may not be free from blame in other respects. These propositions are abundantly sustained by authorities, and accord with the common judgment and experience of men. The observance of these precautions on the part of Mr. Peebles would, without question, have saved his life. If he had paid attention and been on the alert for the train during the 40 feet it is said his vision was obstructed, he must have heard its approach. He was less than a quarter of a mile from the cut, and the tool house, 500 feet away, would not interfere with the travel of the sound. The day was clear. No wind was blowing, and all the plaintiff's witnesses heard the train. Thompson, a farm hand, was working on the Van Ness farm south of the cut. He heard the noise made by the train when it was further from him than Mr. Peebles was from the cut, and also heard the bell ringing after the train left Weston, and before it reached the cut. John E. Bartron was a half mile north across the field from the crossing. He says the atmosphere was clear, and no wind blowing; that he heard the rumble of the train before it reached Weston Station;...