Pittsburgh, C., C. & St. L.Ry. Co. v. Scherer

• Decision Date: 06 May 1913
• Docket Number: 2,378.
• Citation: Pittsburgh, C., C. & St. L.Ry. Co. v. Scherer, 205 F. 356 (6th Cir. 1913)
• Parties: PITTSBURGH, C., C. & ST. L. RY. CO. v. SCHERER.
• Court: U.S. Court of Appeals — Sixth Circuit

205 F. 356

PITTSBURGH, C., C. & ST. L. RY. CO. v. SCHERER.

No. 2,378.

United States Court of Appeals, Sixth Circuit.

May 6, 1913

Robert Ramsey, of Cincinnati, Ohio, for plaintiff in error.

Littleford James, Ballard & Frost, of Cincinnati, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

This action, brought under the Ohio statute, is for the alleged negligent killing of plaintiff's intestate.At the close of the testimony defendant requested direction of verdict in its favor, on the ground that there was no substantial evidence supporting the cause of action alleged.The request was denied, the case submitted to the jury, and verdict rendered for plaintiff.

1.The refusal to direct verdict presents the question most prominently urged.The testimony tended to show that decedent was killed, in the nighttime, at the Harrell street crossing of Gladstone avenue, in Cincinnati.Gladstone avenue runs east and west, and has upon it a double steam railway track the south track being for east-bound traffic and the north track for west-bound.There was testimony that defendant's engine No. 8964 passed across Harrell street going east, running tender forward, at 8:11 p.m. on the night of the accident; that at or about the same time a freight train crossed Harrell street on the west-bound track; that other trains crossed Harrell street on the west-bound track at 8:12, 8:17, 8:25, and 8:46 respectively; that a Norfolk &amp Western train crossed on the east-bound track at 8:54 p.m.There were no eyewitnesses to the accident.Plaintiff claims that decedent was killed by defendant's engine No. 8964, and there is no room for recovery on any other theory.Defendant contends that the evidence was too speculative and conjectural to afford any legal basis for recovery, and that, so far as appears, deceased may have been killed by either of the several trains mentioned, on either the eastbound or west-bound tracks.The rule is too firmly established, to need extended reference to authority, that where one of two or more things may have induced the accident, for one of which the defendant is responsible and for the other of which he is not, it is not permissible to speculate between the several causes, and to find that the defendant's negligence was the real cause, in the absence of satisfactory foundation in the testimony for that conclusion.Patton v. Texas & Pacific Ry. Co.,179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361;Smith v. Illinois Central R.R. Co. (C.C.A. 6th Circuit)200 F. 553, 555, and cases cited.

The question is whether the evidence brings the instant case within the rule stated.A careful examination of the testimony convinces us that the case before us is not within that rule.There was evidence tending to show that from one to two minutes before engine 8964 crossed Harrell street decedent, in company with his niece, left the latter's home, five doors west from the northwest corner of Harrell street and Gladstone avenue.This is the last time they were seen alive.There was testimony tending to show that about 8:30 p.m., and thus before the Norfolk & Western train crossed on the east-bound track, what turned out to be the girl's body was seen on the south side of Gladstone avenue, near its intersection with the east side of Harrell street.Scherer's body was found on the east-bound track about 150 feet east of Harrell street.It was badly mangled, and bore evidence of having been mutilated by the passage of a train of cars.It was not found, nor was the girl's body identified as such, until after 9 o'clock.The girl's body showed no external injury, except a wound on the head.We think the evidence sufficient to reasonably sustain an inference that both were killed by engine No. 8964.They would not unnaturally have reached the crossing at just about the time this engine passed.The position of the bodies raises a reasonable inference that they were struck on the south track, rather than on the north track.That the collision was with engine No. 8964,...