Pennsylvania R. Co. v. Moffitt

ALSCHULER, Circuit Judge (after stating the facts as above). The salient contentions for reversal of the judgment are that the evidence fails to show negligence on the part of the company and that from all the evidence contributory negligence in driving the automobile affirmatively appears. That this was a crossing highly and extraordinarily dangerous to travelers approaching' it from the south must be conceded, and of course no one knew this better than the company itself. The location of its block tower involves an engineering question, which it was the company’s right and duty to solve, and while it may not have been negligence on its part to place and maintain it there, nor indeed to leave the embankment so that it will tend to obstruct view and sound of approaching trains, yet under these conditions of hazard it must manage its trains with some view of minimizing the special danger there to the traveling public. It is charged that the statutory whistle and bell signals were not given. There was evidence tending to show they were not. Perhaps, had we been triers of the facts, our conclusion would have been that the evidence showed they were given. But do not the circumstances suggest something more than complying with the statutory requirement? Here was a belated train, drawn by two locomotives, approaching a place of extraordinary danger at a speed which a mature witness residing next to the right of way characterized as the swiftest she had ever seen, with full knowledge on the company’s part that the train would be at the danger point more quickly than ordinarily, and it might have been considered negligent management of the train not to give a signal further back than the statutory 80 rods, or not to make it so loud and prolonged that the sound would be more likely to be heard; and under these circumstances, with these two locomotives supplying the power propelling this long train at such speed, it might well have been regarded as a requirement of ordinary care that on approaching this point of extraordinary hazard the whistles of both locomotives be sounded continuously until this place was reached,, and failure to do so might by the jury have been regarded as negligent running and management of the train under the indicated circumstances. The right generally to run through the country at such a rate of speed as the company sees fit may be conceded. At the same time extraordinary circumstances may be readily conceived under which it would be negligence to run at high speed, or even to move at all. We are satisfied that there was sufficient evidence bearing upon the negligence of the company, so that it could not be concluded as a matter of law that no negligence on its part appears. Does contributory negligence of the deceased affirmatively and necessarily- appear from tins record, thereby requiring a directed verdict for plaintiff in error? We will assume that deceased wa,s driving the ear, which was his own. His relatives and friends were with him. He was in good health, in the possession of his faculties, was profitably employed, and there is nothing to indicate any motive for the destruction of himself and those with him, or any purpose with reference to this crossing except to pass it in safety. But even the strongest, wisest, and-best-intentioned may encounter danger which ordinary care and prudence would require him to avoid, and thereby defeat recovery for ensuing injury. That he was approaching a railroad crossing he must be held to have known. He was not resident in these parts, and was home [279] ward bound, with apparently every normal incentive for safely negotiating the journey. Only a few moments before he had crossed the same track some 100 feet east, and evidently there saw nothing to indicate the danger which in a few moments ho would encounter. Up to about 70 feet from the crossing he was evidently in no undue haste, as the telegraph operator says he was then moving along at the rate of 7 or 8 miles an hour, and did not appear oblivious to his approach of a railroad crossing, as he was looking toward the tower, which was also in a westerly direction. The telegraph operator, whose business it was in part to take note of these trains, says he heard no sound of its approach, and it is not unreasonable to believe that no such sound obtruded itself upon the ears of deceased, however he may have been listening. If, as there was some evidence to indicate, the crossing bell was not ringing, its very silent, presence might tend to give assurance that no' train was in fact approaching within the distance at which ordinarily such bells begin to sound their warning; and, while the nonringing’ of the crossing bell is not charged as negligence, the fact of its silence may be considered with other facts on the question whether deceased, approaching this track,- was chargeable with negligence in assuming he could safely cross. Under the testimony of some of the witnesses, if he had- stopped near enough the south track to enable him to see clearly to the west, the front of his automobile would have been uncomfortably close to the danger line from the overhang of any passing train. There was an upgrade leading to the south track, and again leading from the north track, and if he increased his speed somewhat, in the absence of knowledge of an approaching train, it would likely have been for the purpose of getting up the grade and over the bump on the edge of the crossing plank, as was testified to. We cannot see that in so going over the track as he did under these unusual circumstances, it can be said he did not act as a.n ordinarily prudent person might have acted in a similar’ situation. We are of the view that the fact of contributory negligence or the want of it was under all the facts in the case fairly a question to be determined by the jury. The cases of Lamely v. B. & O. S. W. Ry. Co. (C. C. A.) 298 Fed. 916, decided February 23, 1924, and Mearns v. B. & O. S. W. Ry. Co. (C. C. A.) 284 Fed. 31, which connsel for plaintiff it) error stress, are materially different in their facts, as perusal of them will show, and what we said in those cases we consider in no way conflicting with the conclusion here reached. No other question is presented which we deem it necessary to discuss, and the judgment of the District Court is affirmed.