Shatto v. Erie R. Co.

• Decision Date: 18 March 1903
• Docket Number: 1,136.
• Parties: SHATTO v. ERIE R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

121 F. 678

SHATTO v. ERIE R. CO.

No. 1,136.

United States Court of Appeals, Sixth Circuit.

March 18, 1903

W. S Anderson and Murray & Koonce, for plaintiff in error.

C. D Hine and John H. Clarke, for defendant in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

DAY Circuit Judge.

This case was brought to recover for personal injuries sustained by the plaintiff as the result of a collision between one of the engines attached to a train of the defendant company and the vehicle in which the plaintiff was attempting to cross the track. Upon hearing the testimony for the plaintiff, the trial judge directed a verdict in favor of the company upon the ground of the contributory negligence of the plaintiff at the time of the collision. This proceeding brings into review the correctness of that instruction.

It may be conceded at the outset that there was testimony sufficient to make a case to be submitted to a jury as to the negligence of the company in running its train at the time at a higher rate of speed than was permitted by the ordinance of the city of Sharon, Pa., within the limits of which city the accident happened, and that there was a failure on the part of the company to give the warning signals required by the exigencies of the situation in approaching the crossing of a much used street. We may, therefore, consider the case upon the theory that the negligence of the company was sufficiently proven, and turn our attention to the question of contributory negligence.

The railroad runs north and south, or nearly so, through a part of the city and across a number of streets, one of which known as 'Ohio Street,' crosses the track of the defendant company at an angle, the street running approximately east and west. At a distance about 1,700 feet north of the crossing the passenger station is situated. Crossing Ohio street the defendant company has two tracks. Thirty feet to the west of the main track is the track of one of the divisions of the Lake Shore & Michigan Southern Railroad Company. At a distance of 7 feet and 8 inches east of the east rail of the defendant's main track there was a side track crossing Ohio street parallel with the defendant's main track. This side track extended above and below Ohio street for a considerable distance. On this siding, at the time of the accident, there was standing a train of freight cars, the train having been cut in two so as to permit a space for the passage of people and vehicles of from 9 to 12 feet in width. The view from Ohio street to the east of the crossing up the track to the north was obstructed by high board fences, dwelling houses, piles of lumber, a lumber mill, and the standing cars. At the time of the accident, for a distance of at least 225 feet east of the crossing on Ohio street, no view could be had of a train approaching the crossing from the north. Under these conditions a person approaching from the east on Ohio street could not, because of the freight cars and other obstructions, see up the track to the north until within two feet of the main track. On February 18, 1900, the plaintiff, accompanied by his brother-in-law, started to drive from his home to the west side of the city. In so doing, he drove along Ohio street, approaching this crossing from the east. Ohio street is a much-traveled street, and a common thoroughfare for the people of the city. It was in the afternoon, about 4:30 o'clock. The ground was covered with snow, and the wind was blowing strongly from the south. The plaintiff and his companion were riding in a phaeton with the curtains down, the former driving, and occupying the right-hand seat. The plaintiff's testimony tended to show that at a point from 200 to 225 feet east of the crossing he and his companion moved to the front of the seat, one looking north, and the other south, and listening for a train; that at a point about 90 feet east of the crossing he looked out around the buggy top, but could see nothing to the north because of the cars on the siding above; that about 25 feet back from the track they looked and listened again, and heard nothing; that he started to drive through the opening between the cars; when his horse got his head beyond the cars, he swerved, and jumped to the left at an angle down the track; that the horse gave a second jump, and jerked the buggy off the ground, then into the middle of the track. The plaintiff testifies that his horse was going three or three and a half miles an hour just before he went past the freight cars. It appears that the plaintiff did not stop. He testifies that he and his companion were looking and listening from a point about 250 feet east of the crossing, and heard no train. The day was cold, and the plaintiff had on 'ear tabs.' The plaintiff was familiar with this crossing. Until within about 100 feet of the track, the horse was driven at a trot; after that, he was 'prancing' or 'single-footing.' At a distance of 30 or 40 feet from the crossing, the horse pricked up his ears as though he heard something coming from behind. The plaintiff looked back, but saw nothing.

The principles which govern the determination of questions of contributory negligence in cases like the one at bar are well settled. The law required of one approaching a railway crossing the exercise of his faculties of sight and hearing to avoid injury. While the standard is the care of ordinarily prudent persons under the same or similar circumstances, such care requires that in approaching a situation so dangerous as a railway crossing a person shall at least look and listen at such short distance from the crossing as to enable him to pass in safety. In some...