KILMER et al. v. NORFOLK & W. RY. CO., 45 F.2d 532

McCLINTIC, District Judge. Lucille Kilmer instituted an action at law in the circuit court of Jefferson county, W. Va., against the Norfolk & Western Railway. Company, and James P. Morison, an infant' suing by his next friend, also instituted an1 action at law in this same court against the same defendant. These actions were properly removed to the District Court of the United States for the Northern District of West Virginia for trial. For reasons which will appear in the statement of facts, the two cases were consolidated for trial before one jury.

When all the evidence was introduced, upon motion of the defendant the court directed a verdict for it in each action. This direction of verdicts and the refusal to set them aside when so returned are assigned as error by the plaintiff in each case. The actions were based upon injuries received by each of the plaintiffs when the automobile in which they were riding was struck by a train of the defendant as the automobile was passing over its main track at a public crossing, locally known as Morgan’s Grove Crossing in Jefferson county, W. Va.

The plaintiff Lucille Kilmer, about twenty-eight years of age, and the plaintiff James P. Morison, about eighteen years of ago, on tho 14th day of December, 1928, soon after 4 o’clock in the afternoon, left the home of the father of James P. Morison, Dr. G. P. Morison, in an automobile owned by tho plaintiff Morison, for the purpose of going to tho town of Shepherdstown, a distance of about 1 y2 miles, to buy some meat for supper. Plaintiff Kilmer, for a period of eight years prior to this day, had made her home with tho Morisons. She had been employed by Dr.

Morison as an assistant in his office, but such employment had ceased about a month before the accident. She intended to shortly leave to take a course of training in a city hospital. The Morisons had lived in this home for a period of almost three years. Each plaintiff was thoroughly familiar with the railway crossing in question, and also each one was familiar with the fact that there was a passenger train north bound due to pass over that crossing shortly after 4 o’clock in the afternoon.

It is proven that the leaving time of this train at Shenandoah Junction was seven minutes after 4 o’clock, and the leaving time at Shepherdstown was nineteen minutes after 4 o’clock, and that the distance between these two places was 6%o miles, and that this crossing was on this stretch of defendant’s railway, and about 1% miles from Shepherdstown. Plaintiff Kilmer accompanied plaintiff Morison for the purpose of selecting the cuts of meat, for the reason that Mrs. G. P. Morison was not satisfied with the selections theretofore made by him. It was raining and foggy.

The plaintiffs testify that the fog was very dense, and that, when they approached tha crossing, it was impossible to see more than 60 feet. The distance from the home of Dr. Morison to the crossing was about 1,000 feet. At the crossing there was a one-end side track, and the switch therefor was about 400 feet south. The plaintiffs were riding in a new ear with four doors, and both of them were sitting on the front seat. Morison was driving.

The plaintiffs testified that, when the automobile approached tho crossing, it was stopped at a distance of a few feet from the side track, and that the front window at the driver’s left was opened, and that the plaintiffs looked and listened, and, seeing and healing no signs or signals of any approaching train, closed the window, and, putting the car into low gear, started across the railway tracks; that, on account of the dense fog, tho line of vision was very limited, each placing the distance at about 60 feet; that, when the automobile was on the main track, Morison happened to look up south, and the train was not more than 20 feet away, and he tried to get across, ahead of the train, but failed.

The rear end of the automobile was struck, and the plaintiffs were thrown out and badly hurt, and the car was very much damaged. The distance from the bumper, where plaintiffs testified the car was stopped, to the center of the main line of the railway at the crossing, was about 24 feet, and to the same point from where the plaintiffs were sitting in the ear was 33 feet. The train of the defendant was a fast passenger one, consisting of an engine and five cars running at a rate of 55 miles per' hour, and was six or seven minutes behind jts

schedule time. There was no scheduled stop between the stations of Shenandoah Junction, and Shepherdstown. The road at this crossing was traveled only by a few persons. There was a loading platform facing the side track, and variously testified to be 3 to 5 feet high and 14 feet long, immediately south of the road as it was traveled by the plaintiffs in approaching the crossing and on the side from which the train came.

The engineer of the train testified that, when the engine was about 180 feet away, he saw the top of the automobile over the platform approaching the' crossing, and that he then gave the distress signal by three short ■ blasts of the engine whistle. It was testified by the’plaintiffs that their car was stopped in the rear of this platform, and that, it proceeded then onto the crossing from that point. The crossing, as shown by the photographs thereof, was smooth and practically level across the side track and main line. The tracks were only slightly elevated above the level of the road on either side.

The south whistling post was 944 feet from the center of the crossing on the main track. There was testimony tending to show that on a clear day, at the point where plaintiffs testified the ear was brought to a standstill, a vision of 800 feet could be had of the railway track in the direction from which the train was coming. From the testimony of the witnesses of the plaintiffs, it is reasonable to find that it took a space of time of sixteen seconds for the automobile to start from the point where it had stopped to start again and go upon the main track where it was struck by the train.

The windows were all closed from the time that the plaintiffs started until the stop before reaching the side track, when the front one on the left side was lowered for a few seconds. Then it was closed, and the plaintiffs drove on the track with all the windows dimmed by fog and mist.

In order to show negligence upon the part of the defendant, the plaintiffs, in their respective declarations, charge: First, that the defendant failed in its statutory duty to have the bell or whistle on the locomotive rung or blown at a distance of at least 60 rods from the place where the railroad track crosses any public highway, and further failed to keep the bell ringing or whistle blowing for a time sufficient to give due notice of the approach of such train before such highway was reached; second, that the defendant recklessly and negligently drove its locomotive and passenger train at a dangerously high rate of speed over and upon the crossing, and did not keep a proper lookout for the safety of travelers on the highway, and especially the plaintiffs.

The defendant, on its part, denied the allegations of negligence made by the plaintiffs, and claimed that the plaintiffs, by their own negligence in driving upon the crossing in the way and manner shown by the evidence, contributed in a material way to their injuries. Was there any substantial evidence produced to prove negligence by the defendant as charged? Were the signals required by statute of the employees of defendant on an engine approaching a crossing given in the way and manner required by such statute?

Seven witnesses, four of whom were not employees of the defendant, testified positively that the whistle was sounded at the proper time and place, and in the proper way, as required by law, for this crossing. Three witnesses testified that each heard the whistle on the engine sounded, but were uncertain as .to the exact place where it was so sounded. Only the plaintiffs failed to hear it, and they gave the negative testimony that, if it had been sounded, they would have heard it.

One of the employees on the engine testified positively that he rang the bell thereon by hand from a point south of the whistling post to and by the crossing. The plaintiffs also testify that they did not hear it, and think that each of them would have heard it if it had been rung—again, wholly negative testimony. The plaintiffs were in a closed automobile, with the windows all closed, except for the few seconds when it was stopped. The engine in the machine was at least making some noise, and attention was being given to driving. The train was traveling about 80 feet each second.

According to plaintiffs’ witnesses, it took sixteen seconds to start the automobile and reach the point on the track where it was struck. Dining this time it was running in low gear, and during this time the train ran 1,300 feet, practically one-quarter of a mile.

When they stopped, low-tired the window of the automobile, looked and listened, as testified by plaintiffs, the train was 1,300 feet away, 350 feet beyond or south of the whistling post, and, when plaintiffs closed the windows and started their car, the time had not arrived and the placo had not been reached for the ringing of the bell or blowing of the whistle. It took the train sixteen seconds then to reach tho crossing, and, according to the plaintiffs’ evidence, it took tho automobile, from the time it started, sixteen seconds to reach tho crossing; honee the inevitable collision.

Even if it had been a clear day instead of a rainy, misty, foggy one, the train would have been out of the vision of plaintiffs at the time and place where they testified they stopped, looked, and listened, as one could only see 1,800 feet south on the track at that point. The automobile, being wholly closed and running in low gear, necessarily made considerable noise.

Then, under tho testimony, it further appeared that it was raining briskly, which necessarily added to the other noises and rendered it very unlikely that tho plaintiffs (the occupants of tho ear) would or could hear the whistle blown or bell rung, and it is quite reasonable to believe that they did not hoar them. They did hear the distress signals when the train was very close and the danger very imminent.

Under all the evidence and the conditions shown to be existing at the time, to us there is no difficulty in arriving at the certain conclusion that the statutory signals for this crossing were given on the day of the accident. In Cavendish v. C. & O. Railway Co., 95 W. Va. 490, 121 S.

E. 498, it was hold that: “The fact that witnesses have heard signals given by a locomotive approaching a crossing, warning travelers of danger, is not necessarily in conflict with the evidence of other witnesses who did not hear them; for the observation of the fact by those who heard is consistent with the failure of the others to hear them.” In the same case, the court further said: “ * * * Illustrative of the rule under discussion is Hoffard, Adm’r, v. I. C. Railroad, 138 Iowa, 543, 110 N. W. 446, 16 L. R. A. (N.

S.) 797, where it was held that a conflict in evidence requiring jury determination is not created where there is positive evidence that a signal for a crossing has been given, and evidence from witnesses in a elosed house one-half mile away that they did not hear it.

The rule stated by Wigmore, in volume 1, § 664 of his work on Evidence, is that the existence of a fact may be negatived by what may bo called negative knowledge founded on tho witness’ failure to see or hear a fact when he would supposedly have heard or seen, if it had occurred; the only requirement being that tho witness should have been so situated that in the ordinary course of events he would have heard or seen the fact if it had occurred.

Lawson, in volume 3, § 1184, on Rights and Remedies, says: ‘Where the evidence is conflicting as to whether the ball was rung or the whistle sounded at a crossing, and there is affirmative testimony that this duly was performed and negative testimony by other witnesses that they did not hear it, the affirmative evidence of the fact should overcome the negative. Thai plaintiff did not hear the signal is no evidence that it was not given.’ ” The second charge of negligence was based upon the alleged failure of the employees of the defendant to keep a proper lookout, and that the speed of tho train was excessive.

There is no evidence to support the first of these charges. The only evidence upon the subject was that of the engineer, who testified that he was looking ahead and giving strict attention to his duty in that respect. In respect to the speed of the train, it must bo remembered that this was a sparsely settled community, and that this highway was but little traveled. It was a side road, as that term is used along modern highways.

The railway undoubtedly has a right to regulate tho speed of its trains, consistent with the safety thereof, -over little used crossings where there is no congestion of traffic and no speed limit fixed by law. The

schedule of time of this train on the day of the accident, leaving Shenandoah. Junction, was seven minutes past 4 o’clock in the afternoon, and leaving Shepherdstown was only twelve minutes later. This distance is Gs/io miles. This schedule, including starting at Shenandoah Junction and stopping and starting at Shepherdstown, would require an average speed of 46^10 feet per second. When the time of stopping and starting is eliminated, it will be seen that the time of 80 feet per second at the point of the accident is but little, if any, greater than the regular running time of this train.

We are of opinion, upon the facts proven and the necessary inferences therefrom, that there was and is no actionable negligence shown upon the part of the defendant under this charge. Baltimore & O. R. Co. v. Reeves (C. C. A.) 10 F.(2d) 329; Pennsylvania R. Co. v. Stegaman (C. C. A.) 22 F.(2d) 69.

When the learned trial judge direetéd the verdicts for the defendant, he evidently not only considered the failure of the plaintiffs to prove their charges of negligence against the defendant, but he also considered the question of contributory negligence, as shown by the evidence relative to the acts of the plaintiffs before and when the accident occurred. On this question, a distinction is claimed between plaintiff Morison, owner and driver of the automobile, and plaintiff Kilmer, claimed to be a passenger therein.

Therefore, on this phase we will consider the cases separately in some respects and jointly in others. The plaintiffs were each well acquainted with the roads and railway crossing, and, further, with the fact that a fast passenger train on the line of the defendant ran north shortly after the hour of 4 o’clock in the afternoon. It was a misty, rainy, and foggy day in winter. Plaintiff Kilmer had been a member of the Morison family at their country home for nearly three years, and had been an employee and close friend for five years more. She was an experienced nurse and business woman, twenty-eight years of age.

Plaintiff Morison was a.school boy of eighteen years of age, and had grown up with plaintiff Kilmer, and to some extent, at least, under her tutelage and control. They left the Morison home1 on the day of the accident on a common and joint mission for the family. The young brother of plaintiff Morison was very ill. Each was much concerned about him. They sat together on the front seat of the tightly closed ear as they went forth on this family mission. The short distance, for an automobile, of 1,000 feet, brought them to the railway crossing in fourteen seconds, according to the testimony of Dr. Morison.

What happened then? It is unnecessary to again recite the testimony of plaintiffs. Suffice it to say that they stopped too far away and looked and listened where such action on their part was of little or no value. In the case of Robertson v. Power & Railway Company, 99 W. Va. 356, 128 S. E. 829 (decided in 1925), the court held: “1. In addition to the duty to look and listen in both directions, one approaching a railroad crossing must stop where the circumstances of the ease require it. “2.

A railroad crossing is of itself a proclamation of danger, and a traveler about to cross the track must always exercise care proportionate to the danger; as the danger increases more vigilance is required. “3. The duty to look and listen before entering upon a railroad crossing requires the traveler to exercise care to select a position from which an effective observation can be made. “4.

One driving an automobile towards a railroad crossing which he can see but where his view of the track on either side is obscured, must have his car under such control that he can stop before reaching a zone of danger in case a train is approaching; and if he fails without reasonable excuse to observe such precaution, he is guilty of negligence.” We quote from the opinion in the same case the following authorities: “In 3 Elliott on Railroads (3d Ed.) § 1661, it is said: ‘The duty to look and listen requires the traveler to exercise care to select a position from which an effective observation can be had.

The mere fact of looking and listening is not always a full observance of the duty incumbent upon the traveler, for he must exercise care to make the act of looking and listening reasonably effective, and must usually continue to be on the lookout and exercise hiá faculties until he has crossed.’ See, also, 22 R. C. L. 1030; Babbitt on Automobiles (3d Ed.) § 1847; Huddy on Automobiles (7th Ed.) § 674; Washington & O. D. R. Co. v. Zell, 118 Va. 755, 88 S. E. 309; Askey v. C., B. & Q. R. Co., 101 Neb. 266, 162 N. W. 647.

In the ease last cited it is said: “ ‘It is the duty of a traveler on a highway, when approaching a railroad crossing, to look and listen for the approach of trains. He must look, where, by looking, he could see, and listen, where, by listening, he could hear; and if he fails without reasonable excuse to exercise such precautions he is guilty of negligence.’ “And in Wehe v. A., T. & S. F. R. Co., 97 Kan. 794, 156 P. 742, L. R.

A. 1916E, 455, it was held: ‘The driver of an automobile cannot recover damages for injury to himself and his machine, where he approaches a railway track at a place at which he can not see along the track until his automobile is in a place where he will be struck by a passing engine or ears, and does not stop his car to ascertain whether or not there is danger, although he listens before going into the place of danger and does not hear any engine or cars coming.’ “To the same effect see Sanford v. Grand Trunk Western R. Co., 190 Mich. 390, 157 N. W. 38; N. Y. Cent. R. Co. v. Maidment, 168 F. 21, 93 C. C.

A. 413, 21 L. R. A. (N. S.) 794; Glick v. Railway Co., 124 Md. 308, 92 A. 778; Babbitt on Automobiles (3d Ed.) § 1849. In the Federal case just cited, it was said: £The duty of an automobile driver approaching tracks where there is restricted vision to stop, look, and listen, and to do so at a time and place * K where listening will be effective, is a positive duty, and these safeguarding steps the plaintiff failed to take. Ho stopped where stopping would serve no purpose, and failed to stop where stopping would have disclosed danger.

He made chance, and not sight, the guaranty of his safety.’ ” In the ease of Washington, etc., Ry. Co. v. Zell, 118 Va. 755, 88 S. E. 309, the court said: “Drivers of automobiles are held to a higher degree of caution in crossing railroads at grade than drivers of wagons and other vehicles drawn hy horses.

If they cannot otherwise see or hear, they must stop, look and listen even in close proximity to the track, and if they fail to do so, and make cilanco, not stopping, their guaranty of safety, and are injured by moving trains, they cannot recover.” This statement of the law is quoted with approval by the Supreme Court of West Virginia in the ease of Krodel v. Railroad Co., 99 W. Va. 374, 128 S. E. 824. A mass of cases decided by the highest court in West Virginia support the defense of contributory negligence as found by us in these actions. Some of them are as follows: Beyel v. Railroad Co., 34 W. Va. 538, 12 S.

E. 532; Berkeley v. Railroad Co., 43 W. Va. 11, 26 S. E. 349; Robinson v. Railroad Co., 90 W. Va. 411, 110 S. E. 870; Jameson v. Railroad Co., 97 W. Va. 119, 124 S. E. 491. A number of cases from the Federal Reports do likewise. Some of them are as follows: Chicago, R. I. & P. R. Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542; Schofield v. Railroad Company, 114 U. S. 615, 5 S. Ct. 1125, 29 L. Ed. 224; Dernberger v. Railroad Company (C. C. A.) 243 F. 21; and Id. (D. C.) 234 F. 405. Neininger v. Cowan et al. (C. C. A.) 101 F. 787; Elliott v. Railroad Company, 150 U. S. 245, 14 S. Ct. 85, 37 L. Ed. 1068.

We desire to especially call attention to the case of Baltimore & Ohio Railroad Company v. Goodman, 275 U. S. 66, 48 S. Ct. 24, 72 L. Ed. 167, 56 A. L. R. 645. In this case, the train was running at the rate of 60 miles an hour, the driver’s view was obstructed by a building, and ho drove upon the track at the rate of 5 or 6 miles an hour without looking or listening before going on the track, and the Supremo Court held that he was guilty of contributory negligence as a matter of law. If Goodman had looked from a point close to the track, ho would have seen the train and avoided the accident.

If the plaintiffs in this ease had looked and listened at a point close to the main track, they would have seen or heard the train, or both, and avoided the accident. They could not look effectively from that point farther away because of the fog any more than Goodman could from such point on account of the building. The syllabus of this ease is very -applicable here. It is as follows: “One who drives upon a railroad track relying upon not having heard a train or any signal and taking no further precaution, does so at his own risk.

If ho can not otherwise be sure whether a train is dangerously near, the driver must stop and get out of his vehicle before attempting to cross. “In an action for negligence the question of duo care is not left to the jury when resolved by a clear standard of conduct which should be laid down by the courts.” Under the facts ¡is admitted or proven in this action, we are of opinion that the driver of the automobile, plaintiff Morison, was plainly guilty in law of contributing to his own hurt by his own acts of negligence, and cannot recover any damages against the defendant in this action.

In view of our conclusion that the accident was caused solely by the negligence of the driver Morison, and that there was no negligence on the part of the defendant company, it is not necessary to discuss the question whether the plaintiff Kilmer was guilty of contributory negligence. The conclusions hereinbefore set out necessarily require the affirmance of the judgments rendered in these two actions. Affirmed.