Wabash Ry. Co. v. Glass
| Decision Date | 10 May 1929 |
| Docket Number | No. 5167.,5167. |
| Citation | 32 F.2d 697 |
| Parties | WABASH RY. CO. v. GLASS. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gustavus Ohlinger, of Toledo, Ohio (Smith, Beckwith, Ohlinger & Froehlich, of Toledo, Ohio, on the brief), for appellant.
Fred W. Warner, of Marion, Ohio (Carhart & Warner, of Marion, Ohio, and Brown, Hahn & Sanger and Sholto M. Douglas, all of Toledo, Ohio, on the brief), for appellee.
Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
Plaintiff in the court below, hereinafter referred to as plaintiff, was injured in a day-light grade crossing accident on a heavily traveled crossing in the city of Ft. Wayne, Ind., when the automobile in which she was a passenger was struck by one of the defendant's trains. There was substantial evidence at the trial tending to prove negligence on the part of the defendant in the employment of an inefficient and partially incapacitated crossing watchman, in permitting the gates at the crossing to become in disrepair and/or in failing to lower them upon approach of the train, and in running the train at a negligent speed considering the density of the traffic and the obstructions to the view. There were no exceptions to the charge of the court in submitting either the issue of defendant's negligence or of plaintiff's contributory negligence to the jury. The verdict and judgment were for plaintiff.
The principal contentions of defendant here are that the court below erred in refusing to direct a verdict on the ground that, as a matter of law, plaintiff must be held guilty of contributory negligence, and also erred in admitting evidence of what was said by another occupant of the automobile immediately before the accident. Just before reaching the tracks, they being four in number, the plaintiff noticed the gates were up. The speed of the automobile was decreased to a marked degree, and the father of the plaintiff, owner of the car, cautioned the driver, "Carl, be careful." Plaintiff testified that she looked to left and right as they started to cross, but her view was obstructed by standing freight cars and she did not see nor hear the approaching train. As they crossed, the watchman started to lower the gates. The automobile was struck on the furthermost or fourth track.
We find no error in the admission of evidence of the statement of the plaintiff's father. Even if not properly considered as part of the res gestæ the fact that this statement was made had direct...
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