Schultz v. Erie R. Co., 4463.
Decision Date | 09 January 1931 |
Docket Number | No. 4463.,4463. |
Citation | 46 F.2d 285 |
Parties | SCHULTZ v. ERIE R. CO. |
Court | U.S. Court of Appeals — Third Circuit |
Charles G. Notari, Thomas M. Marshall, and Marshall & Marshall, all of Pittsburgh, Pa., for appellant.
Albert L. Thomas, of Meadville, Pa., for appellee.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
In the court below John E. Schultz, hereafter called plaintiff, brought suit against Erie Railroad Company, hereafter called defendant, to recover damages for personal injury inflicted on him by the alleged negligence of defendant while operating a train. After hearing plaintiff's proofs, the trial judge granted a compulsory nonsuit on two grounds, first, that plaintiff was guilty of contributory negligence; and, second, that there was no proof of negligence of defendant. On its refusal to take off such nonsuit, this appeal was taken, and the questions here involved are, was the court justified in adjudging plaintiff guilty of contributory negligence? and, if not, were the proofs such as to require the question of submission to the jury of the question of defendant's negligence?
Turning to the proofs, it appears that plaintiff, a pedestrian, came along Kenton avenue, in the city of Marion, Ohio, to a railroad crossing. He crossed two tracks belonging to the Big Four Railroad, a company which has no interest and whose tracks have no bearing on the case. The defendant had three tracks beyond, on one of which its freight train was then passing at "about ten miles per hour or better." The proof is that plaintiff stopped and stood on the boardwalk of the crossing and on a track of the other railroad. In that regard the evidence was:
Was plaintiff guilty of contributory negligence in so standing while the freight train was passing? In that regard the court below held that Without discussing the question whether his so standing was evidence of contributory negligence, certain it is that, if so, the question under the facts of this case was one for a jury, not the judge, to determine.
It remains to consider whether there was evidence from which reasonable men could properly...
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Evans v. Missouri Pac. R. Co.
...sufficient distance that it is likely to strike persons lawfully using such crossing. Scott v. Davis, Agent, 270 S.W. 436; Schultz v. Erie Railroad Co., 46 F.2d 285; Louis-S. F. Ry. Co. v. Carr, 94 Ark. 246. (c) The petition pleaded a cause of action under the doctrine of res ipsa loquitur ......
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Spevak v. Pennsylvania R. Co.
...rods during the nine mile run from the inspection point. All this brings the situation sub judice close to the facts in Schultz v. Erie R. Co., 3 Cir., 46 F.2d 285, 286 where this court "Under these proofs we have a situation in which an ordinary freight train, properly conditioned, would n......