Small v. Pennsylvania R. Co., 6363.

Citation65 App. DC 112,80 F.2d 704
Decision Date02 December 1935
Docket NumberNo. 6363.,6363.
PartiesSMALL v. PENNSYLVANIA R. CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

James C. Wilkes and James E. Artis, both of Washington, D. C., for appellant.

Frederic D. McKenney, John S. Flannery, and G. Bowdoin Craighill, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB, VAN ORSDEL, GRONER, and STEPHENS, Associate Justices.

VAN ORSDEL, Associate Justice.

Appellant, Clarence H. Small, administrator, brought suit in the Supreme Court of the District of Columbia against defendant, Pennsylvania Railroad Company, to recover damages for the death of his wife caused by injuries sustained by her while riding as a passenger in an automobile coach operated by her sister-in-law. The accident occurred on a highway about 2 miles north of Frederick, Md., at about 10 o'clock in the morning of March 3, 1932.

The evidence discloses that the car was being driven northward along the highway at about 30 miles an hour; and the locomotive drawing three cars, which had just stopped, or nearly so, at Harmony Grove Station, situated about 200 feet northeast of the highway, was moving at a speed of 4 or 5 miles an hour in a southwesterly direction across the highway when the collision occurred.

Plaintiff, in his declaration, charges defendant company with negligence in that due and timely warning of the approach of the locomotive and cars toward the highway was not given by blowing the whistle of the locomotive, when it started from the station and approached the intersection; that the stationary gong at the crossing did not ring, or, if it did, not loud enough to warn persons on the highway of the approach of the train, and that the railroad company was negligent in not keeping a guard or flagman at the crossing, and an electric signaling device to warn and prevent persons from driving on the railroad crossing when a train or engine was approaching the highway.

Defendant's plea amounted to a denial of these specific allegations of negligence, with an affirmative defense of contributory negligence on the part "of the driver of the automobile in driving at a fast and reckless speed, and in failing to keep a proper lookout, and also by the failure of Mrs. Small herself to observe the danger at the crossing and to warn the driver thereof."

It is uncontradicted that three warning signs could be seen by motorists approaching the crossing from the south: (1) A reflector sign on the east or right side of the highway about 400 feet from the crossing with the words "Danger — R. R." thereon; (2) white cross-marks with letters "R. R." 4 feet high painted on the pavement of the roadway about 400 feet from the crossing; and (3) a large cross-arm sign on the east side of the highway, about 50 feet from the crossing, with large lettering thereon, "Railroad Crossing — Look Out for the Locomotive."

It is alleged by the defendant, on which there is some conflict of evidence, that three warnings were given which could be heard by motorists approaching the crossing: (1) Seven or eight blasts of the engine whistle; (2) the engine bell which was ringing as the train approached the crossing and continued to ring until after the collision; (3) the crossing gong which began to ring automatically when the train was about a half mile from the crossing and continued to ring until after the collision.

From a directed verdict for the defendant, this appeal was taken.

It appears that when the case was submitted to the jury the court had given instructions that if they had not arrived at a verdict by 11 o'clock p. m. they should be permitted to separate. At that time the jury, not having agreed, were permitted to separate. They returned to the courtroom in the morning, and were called into the jury box and asked by the clerk if they had agreed upon a verdict. The foreman announced a disagreement. After considerable argument upon the renewed motion of counsel for defendant for a directed verdict, the court sustained the motion and directed the verdict.

It is urged that the jury, having been permitted to separate under the circumstances, was discharged from further jurisdiction in the case, and that a new trial should have been ordered. The court, however, specifically stated that "they were allowed to go and told to return in the morning. I thought you understood that. * * * The fact is that they were instructed to return." We think that no error was committed in this proceeding. "While it is more regular to give the jury binding instructions before sending them out, according to some authorities, verdict may be directed, if warranted by the evidence, at any stage of the trial before a verdict is actually received by the court and recorded, unless the submission to the jury of itself has operated to deprive the unsuccessful party of some right formerly available in his behalf; thus it has been held that the court may call back a jury, while they are deliberating, and direct a verdict; and a direction, of itself proper, may properly be given, after the court has submitted the case to the jury, when they, after deliberation, are unable to agree, when it is discovered that they are about to render a verdict contrary to law, or even when they return into the court room and announce such a finding, at any time before the court receives the verdict as that of the jury." 64 C.J. 502, and cases cited.

In the present case the mere inquiry as to whether the jury had agreed did not amount to the receiving of a verdict, and the court retained full jurisdiction of the case to dispose of it as he deemed proper until a verdict was received and recorded or the jury discharged. In this case the verdict returned by the jury was by the direction of the court. It was so recorded, and the jury discharged. There was nothing irregular or erroneous in this proceeding.

With the general rule in view of the nonliability of a mere passenger in an automobile for the contributory negligence of the driver, this case must turn chiefly upon the negligence or lack of negligence of the defendant railroad company; and it was upon the failure to establish the negligence of defendant that the court below directed a verdict.

This accident occurred in the state of Maryland. It has been held in that state that in the absence of any action having been taken by the county commissioners under the statute to require the railroad company to maintain at a particular crossing a flagman, electric alarm bells, or safety gates, the omission of the railroad company to maintain such flagman, electric alarm bells, or safety gates does not constitute actionable negligence. Northern Central R. Co. v. Medairy, 86 Md. 168, 37 A. 796; Pennsylvania R. Co. v. Yingling, 148 Md. 169, 176, 129 A. 36, 41 A.L.R. 398. This charge of negligence, however, on the part of the railroad company seems to have been abandoned, and properly so, by the plaintiff, inasmuch as no evidence was offered in support of the averments of the declaration.

We think it unnecessary to consider in detail the voluminous evidence submitted in this case. The direction of a verdict by the court below in favor of the defendant was right. The evidence is uncontradicted that the signs along the highway were in place and in full view as the automobile approached the railway tracks. These constituted a warning that a railway crossing was ahead. This was a warning of which the driver of the automobile...

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    ...dealer witnesses. See Derango v. United States, 6 Cir., 18 F.2d 778; Shaw v. United States, 5 Cir., 41 F.2d 26; Small v. Pennsylvania R. Co., 65 App.D.C. 112, 80 F.2d 704, 707; Sharples Separator Co. v. Skinner, 9 Cir., 251 F. 25; Johnstown Tribune Pub. Co. v. Briggs, 3 Cir., 76 F.2d 601. A......
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