Wabash Ry. Co. v. Walczak

• Decision Date: 06 May 1931
• Docket Number: No. 5693.,5693.
• Citation: 49 F.2d 763
• Parties: WABASH RY. CO. v. WALCZAK.
• Court: U.S. Court of Appeals — Sixth Circuit

49 F.2d 763 (1931)

WABASH RY. CO. v. WALCZAK.

No. 5693.

Circuit Court of Appeals, Sixth Circuit.

May 6, 1931.

Hal H. Smith, of Detroit, Mich. (Beaumont, Smith & Harris, of Detroit, Mich., on the brief), for appellant.

N. C. Bigelow, of Detroit, Mich. (Dohany & Dohany, of Detroit, Mich., on the brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKENLOOPER, Circuit Judge.

Appellee recovered a judgment in the court below for injuries sustained when the automobile in which he was riding was struck at a grade crossing in the city of Detroit by one of appellant's trains. The only question of serious moment is whether the court below should have directed a verdict under the doctrine of Baltimore & O. R. Co. v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645. The car belonged to and was being driven by an adult son of appellee, and there was substantial evidence to the effect that, upon reaching the crossing, the automobile was stopped and all of its occupants looked in both directions. Their attention was specifically directed to a "flasher" crossing signal which, they testified, was not operating. Hearing no bell or whistle and seeing no flashing of the lights, the automobile proceeded and had traveled a total distance of 46 feet and 5 inches to the point of collision, as measured from the flasher pole to the nearest rail of the track upon which the train was moving. On this journey three other tracks were crossed. There is some, rather confused, testimony as to box cars situated upon the first and/or second track so crossed, which cars were said to obstruct the view of the approaching train.

The flasher signal was manually operated by a tower man and there is no serious contention by appellant that it was flashing at the time the automobile stopped. The contention is that, notwithstanding the failure of the flasher signal to give warning, the appellee and all other occupants of the automobile were under constant and affirmative obligation to continue to exercise ordinary care for their protection while crossing the three tracks in question, and to continually look and listen for approaching trains. That they did not discover the train by which the automobile was struck is urged as proof positive that they failed in the exercise of this duty of continued care.

Forty-six feet may be considered as a comparatively long distance when it is traveled on foot or even by horse-drawn vehicle. It is a comparatively short distance when traveled by an automobile. This court has repeatedly held that open gates, the absence of a customary watchman, or the failure of crossing signal to operate, lessened the otherwise imperative duty of the traveler to stop, look, and listen, and was the practical equivalent of an invitation to cross. Landers v. Erie R. Co. (C. C. A.) 244 F. 72; Zimmerman v. Pennsylvania Co. (C. C. A.) 252 F. 571; Detroit United Railway v. Weintrobe (C. C. A.) 259 F. 64; Hines v. Smith (C. C. A.) 270 F. 132; Leuthold v. Pennsylvania R. Co. (C. C. A.) 33 F.(2d) 758; Cincinnati, N. O. & T. P. R. Co. v. Rimmer (C. C. A.) 37 F.(2d) 668, 669; Pennsylvania R. Co. v. Shindledecker (C. C. A.) 44 F.(2d) 162.

Practically all of the above-cited cases recognize an obligation upon the part of the traveler to continue in the exercise of ordinary care throughout the crossing journey, but it is the negligence of the plaintiff himself which alone can defeat recovery upon the ground of contributory negligence. The doctrine of imputed negligence is applied in the state courts of Michigan, and the jury was fully instructed that any negligence of the driver would be imputed to the passenger. In the absence of any statute establishing such rule, however, this would seem to be a matter of general law in which the federal courts would not feel obligated to follow those of the state. Cf. Baltimore & O. R. Co. v. Baugh, 149 U. S. 368, 13 S. Ct. 914, 37 L. Ed. 772; Black & White Taxicab Co. v. B. & Y. Taxi Co., 276 U. S. 518, 529, 48 S. Ct. 404, 72 L. Ed. 681, 57 A. L. R. 426; Illinois Cent. R. Co. v. Hart, 176 F. 245, 52 L. R. A. (N. S.) 1117 (C. C. A. 6); Texas Co. v. Brice, 26 F.(2d) 164, 167 (...