HORN V. BALTIMORE & O. R. CO.
HORN v. BALTIMORE & O. R. CO. (Circuit Court of Appeals, Six.th Circuit.
RAILWAY COMPANIES NEGLIGENCE. ACCIDENTS AT GRADE CROSSmGS -
February 7, 1893.)
Rev. St. Ohio, §§ 3336, 3337, as amended May 13, 1886, (83 Ohio Laws, 153,) provide that a approaching a grade crossillg must lIOund the whistle and ring the bell, and that a failure to do 110 shall render the company liable to any person injured .by such neglect. that the statute did not confer a right of action upon the injured person unless the omission of the signals caused the injury, and that such person. it guilty of contributory negligence, could not recover. Pennsylvania. Co. v. Rathgeb, 32 Ohio St. 66, followed. A .man 71 years of age 81pproached a railroad crossing, riding In close, coV'crl'd wagon, so that he was unable to see on either side. He was familiar with that crossing, and should have known that 'a train' was due about that time, for a freight train was awaiting it on a side track at that point; but he did not stop, or. look or listen, before reaching the track, and was struck and killed. In an action. by his administratrix, some of thepl/lint1Jr's witnesses testified that the statutory signals were' given 'by 'the engineer, but others heard no signals. Held, that the deceased was guilty of contributory negligence, and plaint1fl could not recover. .
8. SAME-SIGNALS-CONFLICT OF EVIDENCE.
The testimony of some credible witnesses that heard the whistle and bell of the engine is not in confiict. with the testimony of others, ,who heard notbiDg; for the observation of the fact by some is entirely ent with the failure of others to observe, or their forgetfulness of its occurrence. Stitt v. Huidekopers, 17 Wall. 393, followed. . .Although the burden of proving contributory negligence is UllQn defendant, the defense may be founded upon facts shown by plalntiJr's evidence alone. In an action for death by wrongful act, where the only legal inference that can be drawn from the evidence is that deceased was of con· tributory negligence, an instruction to find for defendant is not error. Pleasants v. Fant, 22 Wall. 120,
'" SAME-BURDEN OF PROOF.
BAME-INSTRUCTIONS-DIRECTION OF VERDICT FOR DEFENDANT.
In Error to the Circuit Court of the United State9 for the Eaatern Division of the Southern District of Affirmed. S. M. Hunter, for plaintiff in error. Kibler & Kibler and J. H. <;,ollins, for defendant error. Before JACKSON and TAFT, Circuit Judges, and SWAN, District ,
SWAN, District Judge. The plaintiff in error lIB administratrix of the estate of James S. Horn, deceased, brought this action in the court of common plellB for the county of Licking, in the state of Ohio, to recover damages for the' death of her intestate, who Was killed at the Maple street crossing in the village of Utica by the ears of the defendant in error, in the ,evening of September 4, 1890. The case was seasonably removed to the circuit court of the United States for the southern district of Ohio upon the petition of the railroad company, aJleging the diverse citizenship of the parties, and it was there tried before Judge Sage and a jury. . At the close
of the plaintiff's evidence the circuit court directed a verdict for the defendant on thegrduntl that; the deceased's negligence precluded the , . ,I . '· The time locality of the accident· are not in dispute, nor is there any' essential difference in the relations of the circumstances giyen l:!y, yal'i01;lS Pecedentwas 71 of age, and was engaged .in vending washing machines. He had resided in 'Utica for '4 ymrs, lin, its vioinity for 10 or 12 years, and was famili,ar",ith therallioad crossings in tfutt village. At the time of J;ds a c1pse, covered wagon, drawn by a single hQrSe. ,The ,cover extended the whole length of the vehicle, and equally shut out his view of objects on either hand, and hid him from sight on side. The evideItce is conflicting as to "thE( of QUt, under the VIeW.. taken of the case, tllfi/t fa.ctiS, ininJ.8.terial. , ['he from its entrance, in the upper;' limits of the village, runs in'i8i-!I10rih and'8ol1th line, parallel with Main $treet, as far south it intersects at a right angle; thence Jt ,.an: elUlY cutYe, tllrough the village to the southeast, intersecting somewhat obliquely, and on the same level, Maple street, 300 feet south of North street. The course of North and Maple streets is "east ",The ttl8iin track from about North street southward 1;1;1 Bide tracks, On night in question the was occupied l:!y. a north;l;>oWld, freight train, which extended from the switch on North street to a point below Maple street, but had been divided at the latter crossing to permit the passage of v<el1iclelfover the ,tracks. This trainwas!twaiting the passage of the slfuth'-lionnd express train, due at Utica about 8 o'clock P. M., but that or minutes late. On theaouth side of Maple streetl:aJ),out from the track, stood a grocery, in front of which sat three persoos.who witnessed the accident. Two of these testified to its'til'(m:mstances. Their testimonyiagrees; substantially, that they heard the whistle of the approaching train about the same time that the did not see, but whom they recognized by his wagQJl). 4Mle from the eastward along Maple street until about opposite the grocery, where the horse seemed to halt momentarily, but was urged on, by the slapping of the reins, towards the crossing. to halt when he reached the side track, but The was appattttttly urged O,n;as before, when the horse and wagon were almost instantly struck by the train, and Hom was killed. There is no evidence that the bell of the locomotive was rung. Several tlutt the whistle was sounded, while there UI,,8/i negative testimony from others that they did not hear it. The·,:rieW! :of, the cbIi1ing train was somewhat obstructed to an obserter ,M;Maple street by the position of the freight train, and tb.ere thait a lumberya.rd on the north side of Maple ,street, an' anc orchard, :north of North street, interfered with the ill!light of is no evidence, however, that the decedent ,made look or listen for the train, beyond the of, ti).eh:onie'& pace, in front of the grooery, and as he Upon side track. Thei'e waano stop by the deceased
BALTIMORE & O. B.CO.
from the time he was first seen at the grooery until the collision, nor anythin'g to indicate any effort to listen for' danger.. ' The train was running at a speed of 45' or 50 miles' per hour, and did not regularly stop at Utica. ," The chafgel!l of negligence upon which this ac"tion is based are (1) that "said passenger train. was then and., negligently operated up to and over the crossing, by running, at an excessively high, careless, negligent, and dangerous' rate of speed;" and (2) "negligently and carelessly gave no signal of of its approach to said crossing." . But little stress is laid upon the first charge, except as it may be connected with the failure to give, the statutory signals when a.pproaching the crossing. It has been held that high speed is not per se evidence of negligence. v., 00., 40 Iowa., 206; Kla.nowski v. Railroad Co.) 64 Mich. 28,7, 31 N. W. Rep. 275. It is not claimed that the statutes, of Ohio limit the rate of speed at railroad trains shall be run in approacbing highway crossings, or that it is restricted by any t4e village of, Utica,. The examination of this question is, however, as the case does not call for its decision. 2. The ground of recovery mOst; strongly pressed is tpunded on the alleged breach of the statute of Ohio. BY,section 3336, Rev. St. Ohio, as amended May 13, 1886, (S3 Ohio Laws, 1/)3,) it is provided:
"Every company shan have attached to each locomotive engine passing on ltB road 8. bell, of the ordinary size In use OD.. such engines, and a steal,ll whistle, and the engineer In charge of an engine in motion, and approaching a turnpike, highway, or town crossing, upon the same level therewith, and In Uke manner when the rood crosses any other traveled place, by bridge or otherwise, shall sound such whistle at a distance of at least eighty, and not further than one hundred, rods from the place of such crossing, and ring such ben continuously unW the engine passes road crossing. .!' · ."
Section 3337 imposes a penalty upon the "enlPneer or person in charge of any such engine who fails to eomply with the provisions of the preceding section," and further provides that "the company in whose employ such engineer or person in charge of an engine is, as well as the person hiInself, shall be liable in damages to any person or company injured in person or property by such neglect or act of such engineer or person." While this statute subjects railroad companies to liability for the damages occasioned by its violation, it does not confer a right of action upon the person injured, unless the omission of the signals caused the disaster. It does not absolve a plaintiff from the consequences of his own negligence. This statute, or its equivalent, has been construed by the supreme oou,rt of Ohio in Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66. It is there said:
"It is evident froID t1:Jls language [of the statute] that the failure to give signals must have occasioned the aceident,-that Is, must have been the proximate cause of ito-before a recovery can be had. The Injury must happen by 'negligence of the engineer.' I:l' it occurred from some other cause, llalhUity cannot arise therefor, under that statute. Indeed, this statutory .duty "is not dl1ferent, In the responsibility it imposes upon a. failroad,colJ,lpaDY, ,from that
, ,FEDERAL REPORTER,
arising .under the common ·law.·,· ·
To the same effect are the cases of Railroad Co. v. Elliott, 28 Ohio St. 346; Railroad' Co. v. Whitacre, 35 Ohio St. 627, 630. , This' ruling in' no degree, conflicts with the rule of the federal courts that the 'onus of showing contributory negligence is upon the defendant. That defense may be, and ofteJ,l is, founded upon the facts shown by the evidence alone. While there was clearly an infraction of the statute, which is evidence of negligence On the part of the train hands, in the failure to ring the bell, bestatute requires bo;th ringihgof the bell and the sounding ot)j;p.e -Whistle liIIlits, the action must fail if it 'contributed to hiS own death by his negligeD;ce.If brtt one inferimce can be legally drawn from the facts, aJld it would have 'become the duty of the court to set aside a ,verl:IiOt. for the plaintiff; ha.d the issue been submitted to them, th'enthiiiistrtiction was cleal'lycol'rect. Improvement Co. v. Munson"14, Wall. 448: v. Fant, 22 Wall. 120; Schofield v. RailwayC();))l!t U. S. 615;5 Sup.Ct. Rep. 1125: ,That it is ,the duty of. a, upon a highway, when approaching a railroad rcrossing, to make vigilant use of his eyes and ears, is a proposition upon which the federal and state courts are in entire harmony. The traveler must look and.listen before venturing to cross the 'track I1tanytime. It has been well said that a railroad track notice of danger. The necessity of this vigilance, which is the qictate of common prudence, is the more imperative when the traveler is familiar with the crossing, when its dangers are apparent from its surroundings,and when, from long residence in its vicinity, he' may' fairly be presumed to know, approximately at train may ,be expected. Under such circumstances, any from that degree of care which such knowledge requires is the omission of a, duty which bars recovery. The object of the statute in enjoining the use of the bell and the whistle is not oIlly the'protection of the traveler, but also the safety of the train and its who are often endangered by such collisions. The actdpes :not make the railrol1(t.company a guarantor of the effectiveness. of these warnings to the end for which they were designed.. :It propel'ly given, though unheeded by the traveler, because of his defective hearing, fuattention, or any other cause not referaQle to any default of the railroad company, and a collision ensues, the statutory for the resultant injuries is not incurred. There is no evidence that the failure to ring the bell in any way contributed to this unfortunate accident, or that it might have been heard more distinctlv. or further. than the whistle. On the contrary, the latter, as everybody knows,isalldible at a far greater distance, and the evi(Jenceis that of this train was coarse and heavy, and seasonably sounded. While some witnesses testify they did not hear it, 'I!1one',denied that it was blown. . '1'he' "'itnesses Scott and Dennison, the oIllyspectators of the col-
HORN V. BAI.TIMORE '" O. R. CO.
lision who testified, sat in front of the grocery, less than 50 feet from the track, and concur that the whistle was sounded at the water tank, which is 1,500 feet north of the Maple street crossing, and within the statutory limits for the signal, and that at that time the deceased was in front of the grocery, and about 50 feet from the track. Shaw, who drove across the Maple street crossing eastward, just escaping the train, heard the whistle, and located it near the water tank. Lampson, who was on the west side of Maple street, 250 feet from the track, heard it sounded when the train was, as he thought, 400 feet south of the water tank, and also at the Black Jack crossing, one quarter of a mile further north. Baughman, who was on Main street, testifies positively that it was sounded. Clark, who was at the depot, 75 feet south of Maple street, heard the rumble of the approaching train. These are the plaintiff's wit· nesses, and there is nothing in the record to discredit them. In the very nature of their affirmative testimony that the warning was given must be accepted as proof of that fact, notwithstanding an equal or greater number of witnesses failed to notice it, from what· ever cause. There il!! in such cases no conflict of evidence as to the matter in Cluestion. The observation of the fact by some is entirely consistent with the failure of others to observe it, or their forgetful· ness of its occurrence. Stitt v. Huidekopers, 17 Wall. 393; Railroad Co. v. Elliott, supra. Accepting therefore, as an established fact, that the whistle was sounded, and was heard by the deceased, and yet he persisted in attempting to cross the track ahead of the train, there can be no doubt that he should be held to be the author of his own misfortune. The same result must follow if he neglected the means 01' knowledge which would have informed him of his danger, and failed to use his faculties, through inattention or otherwise. Dennison, one of the only two witnesses who testified to the cir· cumstances of the accident says that "Horn went across like any man that was driving across, supposing the traok was all clear;" that his horse was walking when he passed the grocery, and when he went on the crossing. The latter fact is confirmed by Scott, the other spectator who was with Dennison. No one saw Horn look or listen. There was nothing in his conduct to indicate that he had any apprehension of the proximity of the train. It is true that his horse showed an inclination to halt in front of the grocery, 50 feet from the track, and again while on the side track, within five or six feet of the main line. These attempts, however, were manifestly not prompted by the caution of the driver, but by the instinct of the animal; for on each occasion the deceased urged him on. only inference that can be drawn from these facts is that the deceased neither heard nor saw the coming train, nor did he make any attempt to do so. While it is true that his view of it was to some extent obstructed by the presence of the freight train on the east side track, and by other objects in the vicinity, the decedent carried with him, in the cover of his vehicle, and the position of his seat, the greatest obstruction to a view of the train. These c<mditions in· creased the of the crmlsing, and should have stimulated his vigilance in appnoaching it, familiar as he was with the locality, v.54F.no.2-20
and knowing, as he' presumably did, that the train would not stop at Utica, and that it was momentarily expected, as the position of the freight train, awaiting its passage, unmistakably denoted. It is undisputed that he could not see the train from his seat in the wagon, and equally certain that he made no effort to see it, or listen for its approach. From the time he reached the grocery until the collision, he was not seen to move from his seat, or change his position. While his conduct is persuasive that he did not hear the whistle, or the coming of the train, it is clear that, had he stopped and listened, he would have heard, at least, as others did, the warning of the whistle, if not the noise of the train. Assuming the correctness of the estimated speed at 50 miles per hour, it wasevidently but 75 feet from the crossing when Horn's horse halted in his walk on the side track, not eight feet from the main track. It is· incredible that the decedent, if his sense of hearing was not blunted, could have failed to notice the approach of the train; and it is obvious that, if he did hear it, he must have made a fatal miscalculation as to its proximity when he urged the horse over the crossing. There is no evidence that there was anything calculated to divert his attention, prevent his hearing, or lull him into security. In short, there is to extenuate the recklessness of his approach to the Railroad 00. v. Houston, 95 U. S. 697; Schofield v. Railroad 00., 114 U. S. 615, 5 Sup. Ot. Rep. 1125; Haas v. Railroad 00., 47 ::Mich. 402, 11 N. W. Rep. 216. It is unnecessary to pass upon the omission of the plaintiff in the court below to give evidence of special damages. The judgment of the circuit court must be affirmed, with costs.
SHEPPARD v. NEWHALL et al.
(Olroult Court of A.ppeals, NInth Olroult. January 30, 1.893.) ,No. 41.
BALE-STOPPAGE IN TRANSITU-NATURE OF RIGHT.
The true nature and eiTect of the rtght of stoppage in transitu is not to rescind the sale, but to enaJble the seller to enforce his llen for the price, and to that end he is entitled to retake possession, by suit if necessary, and he must then hold the goods until the expiration of the credit, so lIB to be ,able to dellver them on payment of the prtce.
SAME-WHEN RIGHT OF STOPPAGE ENDS.
When goods sold have lett the hands of the carrier, reached their destination, and the purchaser has disposed of them to one who gives a bond for the payment of the customs duties, and deposits them in his own name in a bonded warehouse, the 'seller's power to exerolse the right of stoppage in transitu is gone.
SAKE-BILL OF LADING-INDORSEMENT.
An ocean. bill of lading was drawn to "E. a, or llB8igns." The drawee was a ra.l1road agent at New York. who attended to the transshipment of goods, and he llhlpped the goods to San Franclsco, and transmitted the bill of lading to the pUl"01:laser without indorsement. The purchaser indorsed the bills, and delivered them lIB security for advances. Before the arrival ot the goode the purchaser became insolvent, and the fIblpper eave notice ot stoppage in transitu. Held, that the shipper's rtght to retBke J'OSsession of the goods was una.iTected by the purchaser'S indorsement .ull transfer of the bill of ladingju....m. a" having faJled to indorse them.