Rothe v. Pennsylvania Co.

• Decision Date: 05 March 1912
• Docket Number: 2,158.
• Citation: 195 F. 21
• Parties: ROTHE v. PENNSYLVANIA CO.
• Court: U.S. Court of Appeals — Sixth Circuit

195 F. 21

ROTHE v. PENNSYLVANIA CO.

No. 2,158.

United States Court of Appeals, Sixth Circuit.

March 5, 1912

Joseph M. Blake, for plaintiff in error.

H. S Armstrong (Carey & Armstrong, on the brief), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

This suit was brought for damages occasioned by the death of decedent, who, while attempting on foot to cross the railway tracks in Canton, Ohio, was struck and killed by one of defendant's passenger trains at a public highway crossing known as Carnahan avenue. The grounds of negligence relied on include failure of the engineer to sound the whistle and ring the bell when approaching the crossing, as required by the Ohio statute; failure to provide gates, watchman or automatic crossing signals, and to light the tracks; running at a dangerous and unlawful speed; and failure to give such warning as existing conditions demanded. The defendant denied negligence on its part, and alleged that deceased was contributorily negligent. The jury rendered verdict for defendant. The errors assigned relate to the refusal of requested instructions, and to the exclusion of one item of evidence offered.

1. The Ohio statute (R.S. Sec. 3336; G.C. Sec. 8853) requires every railway locomotive engine to carry a bell and steam whistle and requires that the engineer or person in charge of the engine, on approaching a highway, shall 'sound such whistle at a distance of at least eighty and not further than one hundred rods from the place of such crossing, and ring such bell continuously until the engine passes such crossing ' R.S. Sec. 3337 (G. C. Sec. 8856), subjects the engineer or person in charge of the engine to penalty at the suit of the state for noncompliance with such requirements, and provides that:

'The company in whose employ such engineer or person in charge of an engine is, as well as the person himself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person.'

This statute is construed as not conferring a right of action unless the omission of the signals caused the injury, nor in case the person injured is guilty of contributory negligence. Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66, 72; Horn v. B. & O. Ry. Co. (C.C.A. 6) 54 F. 301, 303, 4 C.C.A. 346; Erie R.R. Co. v. Weinstein (C.C.A. 6) 166 F. 271, 275, 92 C.C.A. 189.

There was evidence tending to show that the deceased, upon approaching the crossing, stopped, looked, and listened, and tending to show the exercise of due care on his part. There was also testimony tending to show that the statutory crossing signals referred to were not given, this testimony being, however, sharply disputed by defendant. Under the evidence, it was open to the jury to infer that the omission of the statutory signals caused the accident. Plaintiff asked the court to instruct the jury as follows:

'I will say to you as a matter of law that if you find from a preponderance of the testimony that the engineer in charge of the train that killed Richard Rothe, or other employe, did not sound the whistle of said train between 1,320 feet and 1,650 feet westerly from Carnahan avenue, and did not ring the bell on said engine continuously from said points of distance until said train had crossed Carnahan avenue, that the defendant is guilty of negligence; and if you find that, because of the failure to so sound said whistle or ring said bell, the deceased, Richard Rothe, was killed, your verdict should be for the plaintiff in this case, unless you find that said Richard Rothe did not exercise reasonable and ordinary care in crossing said railroad track as an ordinarily prudent person would exercise under all the circumstances of the case.'

This requested instruction was not given. It will be noted that this request expresses the statutory distance in feet instead of rods, as given in the statute. The court charged the jury that:

'The statute of Ohio declares it to be the duty of a railroad company, under those circumstances, to sound a whistle at a generally described distance from the crossing, and to ring a bell and keep it ringing until it passes the crossing, and it is claimed, on the part of the plaintiff, that the railroad company omitted the performance of this statutory duty, and that its omission was negligence.'

And, after stating that the plaintiff does not confine her allegations of negligence to the failure to give the statutory signals, said:

'You are to determine what under all the circumstances surrounding the situation ordinary care called upon the defendant to do. What was it, considering everything that was there, that ordinary care required the representatives of the defendant to do? Ordinary care required them to give suitable signals of the approach of this train to this crossing; that is to say, such signals and such warning as persons of ordinary prudence under such circumstances are accustomed to give.'

This is the only portion of the charge which we think fairly pertains to the subject-matter of the requested instruction.

It is clear that the subject-matter of this requested instruction was not covered by the charge. The jury were not told that the omission to give the signals was negligence, but only that the plaintiff so claimed; and the question of defendant's negligence was made to rest upon what 'under the circumstances surrounding the situation ordinary care called upon the defendant to do. ' While a violation by a railroad company of a municipal ordinance regulating speed of trains is not generally held negligence per se, as distinguished from evidence of negligence (Erie R.R. Co. v. Farrell (C.C.A. 6) 147 F. 220, 221, 77 C.C.A. 446; Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 418, 12 Sup.Ct. 679, 36 L.Ed. 485), the language of the statute in question, which may be referred to for the purpose of determining what constitutes negligence in Ohio as to giving crossing signals (B. & O. Ry. Co. v. Griffith, 159 U.S. 603, 607, 16 Sup.Ct. 105, 40 L.Ed. 274), clearly and unequivocally makes the defendant 'liable in damages, to any person or company injured in person or property by such neglect or act of such engineer or person,' in the absence of contributory negligence on the part of the injured person. The negligence of the defendant was established when the jury should find that the bell was not rung nor the whistle blown as required by statute. Jensen v. Railroad Company, 102 Mich. 176, 179, 60 N.W. 57.

The only criticisms made by defendant upon the requested instruction are, first, that it should be interpreted as declaring the duty of sounding the whistle the entire distance between a point 80 rods and a point 100 rods from the crossing-- that is to say, a continuous blast during 330 feet-- and, second, that the reference to 'said points of distance' must be construed as declaring the requirement that the bell be rung continuously from a point 100 rods, or 1,650 feet, from the crossing until the engine (or 'train,' as used in the request) had passed the crossing.

While a party may not complain of the refusal of a requested instruction which does not correctly state the law, the court being under no obligation to reframe a request so as to contain an accurate statement of law, yet where, as here, the meaning of a request is reasonably apparent, and its subject-matter is important and not sufficiently covered by the general charge, a court would not be justified in ignoring the request merely because susceptible of such an interpretation as to make its p...