Riess v. Pennsylvania R. Co.

• Decision Date: 06 November 1939
• Docket Number: No. 66.,66.
• Citation: 107 F.2d 385
• Parties: RIESS v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Second Circuit

107 F.2d 385 (1939)

RIESS v. PENNSYLVANIA R. CO.

No. 66.

Circuit Court of Appeals, Second Circuit.

November 6, 1939.

O'Brien, Driscoll & Raftery, of New York City (Arthur F. Driscoll and Milton M. Rosenbloom, both of New York City, of counsel), for appellee.

Burlingham, Veeder, Clark & Hupper, of New York City (Ray Rood Allen and G. Hunter Merritt, both of New York City, of counsel), for appellee.

Before SWAN, CHASE, and PATTERSON, Circuit Judges.

PATTERSON, Circuit Judge.

The plaintiff brought action to recover damages for the death of her husband who was killed in a collision between a truck driven by him and a train operated by the defendant. The trial court dismissed the complaint at the close of the plaintiff's case, on the ground that the proof of negligence was insufficient to warrant submission of the case to the jury.

The collision occurred on October 13, 1937, at a private crossing over the defendant's track near Port Allegany, Pennsylvania. The track is a single one, running north and south. A private road runs from a public highway east of the track, crosses the track at right angles and ends at the Dalloway farm a short distance west of the track. It serves only the Dalloway place. The record shows very little as to the accident. The deceased in his truck had called at the Dalloway house for junk, using the crossing to get there. As he was leaving, his truck stalled, and he was seen standing nearby, trying to start it. The truck was then facing the track, but was not on the crossing. Nothing more is shown as to his movements, beyond the fact that the truck was hit on the crossing by one of the defendant's trains from the north and the deceased killed. The train was travelling "fast"; whether faster than usual does not appear. The time was about noon, on a clear day. From a point on the private road 30 feet to the west of the crossing there was clear vision of the track for 850 feet north, and at 10 feet there was clear vision for 1,200 feet north. There was testimony that the gravel at the crossing was six inches below the top of the rails, and that after the accident there was a bright spot on the outer side of the west rail.

It is urged on the plaintiff's behalf that there was enough evidence to permit an inference that the deceased attempted to cross before the train came in sight, that the rear wheels of the truck were unable to mount the west rail on account of the height of the rail above the gravel, that the truck was thus halted on the crossing, and that the engineer on the train should have seen it standing still on the crossing in time to stop the...