Stegeman v. Pennsylvania R. Co.
| Decision Date | 03 July 1925 |
| Docket Number | No. 4141.,4141. |
| Parties | STEGEMAN v. PENNSYLVANIA R. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Conn, Hoke & Wright, of Van Wert, Ohio, Ritter & Schminck, of Toledo, Ohio, Harry L. Conn, Kerns Wright, and C. V. Hoke, all of Van Wert, Ohio, and George W. Ritter, and Gerald F. Branigan, both of Toledo, Ohio, for plaintiff in error.
Wheeler & Bentley, of Lima, Ohio, and Marshall & Fraser, of Toledo, Ohio, for defendant in error.
Before DENISON, MACK, and ROSS, Circuit Judges.
An omnibus, containing a number of school children, was struck upon a grade crossing of the railroad and demolished. Several of the children were killed or injured. This action was brought by the father and administrator of one of the boys. The substantial ground of negligence was that the approaching train did not sound the statutory whistle and bell warnings. Under the charge of the court it is clear that the jury found there was no negligence by the defendant which had proximate connection with the accident, and that the sole proximate cause was the negligence of the driver of the bus. With this finding there was naturally a verdict for the defendant. These questions of negligence and proximate cause were for the jury. Among exceptions to the charge which pertain to the subject-matter of liability, we find none which is serious enough to call for consideration.
Where a case has been fairly tried out before a jury, an error in the admission or rejection of evidence must be found or presumed to be seriously prejudicial before it will justify the reversal of a case for that reason; but in this case there was an error of that substantial character. There was something more than a scintilla of evidence tending to support the conclusion that the whistle was not sounded; if not, it clearly was open to the jury to find that such failure to sound the whistle was a proximate cause of the collision; and it was vitally important whether the engineer as a witness told the truth when he said that he sounded the whistle at the recognized location where it was required for this crossing. It appeared without dispute that the train was stopped with the engine a few hundred feet away, and that the engineer and fireman dismounted and came back to the crossing. One of the bodies was lying there, and several nearby farmers had assembled. On cross-examination the engineer was asked if he did not say, while standing there looking at the child's body: ...
To continue reading
Request your trial
-
Hancock v. Kansas City Terminal R. Co.
... ... S.W.2d 723; Globe American Corp. v. Miller, 131 ... S.W.2d 340; State v. Parker, 12 S.W.2d 428; ... State v. Bennett, 87 S.W.2d 162; Stegeman v ... Penn. Ry. Co., 6 F.2d 873. (3) Appellant's second ... assignment specifies no error and is not reviewable; ... moreover, neither the ... ...
-
Pennsylvania R. Co. v. Stegaman
...account of the death of his intestate, his minor son, under the circumstances described in our opinion in this case upon a former appeal (6 F.2d 873) and involved in the Overholt Cases (C. C. A.) 4 F.(2d) Upon the trial there was substantial evidence that the statutory warnings by whistle a......