DETROIT, T. & I. R. CO. v. YELEY, 165 F.2d 375

MILLER, Circuit Judge. The appellant, Detroit, Toledo and Iron-ton Railroad Company, appeals from a judgment in the sum of $3,500 rendered against it in an action filed by the appellee, George D. Yeley, seeking datftages resulting from an accident at a railroad crossing. Appellant complains of the refusal of the trial judge to direct a verdict in its favor, both at the close of the appellee’s evidence and at the close of all the evidence in the case.

The petition, filed in the Court of Common Pleas of Clark County, Ohio, states that the accident occurred on July 14, 1943, at about 4:40 p. m. at the intersection of appellant’s railroad tracks and Park Avenue in Springfield, Ohio, and that appellee’s automobile, which the appellee was driving in a southwardly direction on Park Avenue, was hit by a freight train operated by the appellant and proceeding eástwardly. into the city. The automobile was destroyed and severe injuries suffered by the appellee.

The petition alleges that the appellant was negligent in operating the train without due regard for the rights of persons in the use of the, highway; in operating the train without sounding the whistle' or ringing the bell or giving any signal of its approach-; in failing to exercise ordinary care to avoid striking the automobile of appellee; in failing to have its train under control and to keep a lookout for the appellee; and in maintaining a large pile of earth along its right-of-way and so close to Park Avenue as to obscure the view of travelers using Park Avenue and approaching the railroad right-of-way; which negligence caused the accident and injuries complained of.

Appellant denied the alleged negligence and pleaded contributory negligence on the part of the appellee. The questions presented are — (1) was the evidence sufficient to take the case to the jury on the issue of appellant’s negligence, and (2) did the evidence on behalf of the appellee show contributory negligence on his part as a matter of law, so as to require the trial judge to direct a verdict for the appellant ? We find little difficulty with the first question.

Although the evidence is contradictory with respect to the operation of the train at the time of the accident, yet the record contains substantial evidence on behalf of the appellee that the appellant was operating the train in a negligent manner and that this negligence was the proximate cause of the accident. The appellee testified that the train was traveling within the city limits at least 35 to 40 miles an hour, and a disinterested eye-witness named Dyer estimated its speed at around 30 miles an hour. The train continued on for about 500 feet before stopping after the accident.

Three witnesses, the appellee, Dyer and another disinterested witness named Walker, testified that they did not hear any train whistle or ringing of the bell, although they were very close to the scene of the accident, and in a position to hear such signals.

Section 8853 of the General Code of Ohio provides that when an engine is approaching a highway or a town crossing where the view of such crossing is obstructed the whistle should be sounded at a distance of not less than 80 and not farther than 100 rods from such crossing and the bell shall be rung continuously until the engine passes the crossing. There is nothing in the record to justify the rejection of the foregoing evidence from credible witnesses. Contradictory evidence from appellant’s witnesses raised a clear jury question.

The evidence also showed that the area at the northwest corner of the intersection had been used as a city dump, resulting in the accumulation of a large pile of earth with accompanying weeds and grass.

The record contains much evidence on behalf of the appellee to the effect that this pile of earth, arising to a height of approximately 8 feet at its peak, obstructed the view between the railroad track and an automobile going south on Park Avenue and that the appellant had permitted this obstruction with the uncut weeds and grass to encroach on part of its right-of-way in close proximity to its track in addition to its existence on the city property at the corner.

Whether or not this earth and debris was partly on the right-of-way of appellant and whether or not it constituted an obstruction to a traveler’s view of the right-of-way were questions of fact bearing on the issue of appellant’s negligence for consideration by the jury.

The trial judge properly instructed the jury that if it found that the dump, and the weeds and brush connected therewith, was not on the right-of-way of the appellant then it had no control over it and its employees were not required tO' take such things into consideration when approaching the crossing, but on the other hand if it extended over and upon appellant’s right-of-way so as to form an obstruction to the view along the right-of-way to the west of a traveler traveling south on Park Avenue then its presence should have been taken into consideration by the employees of the railroad company operating the train, as under such circumstances the railroad company had control over it and should have had the obstruction to the view of the traveler on the highway removed.

We believe the evidence justified the submission of the issue of negligence on the part of appellant to the jury. On the issue of contributory negligence on the part of appellee the evidence was as follows: There was approximately 287 feet of straight track to the west of Park Avenue from which direction the train approached. There was approximately 250 additional, feet of track further west and curving to the south to an overhead bridge. There was a slight upgrade of approximately one percent from the bridge to Park Avenue.

The appellee, 46 years of age, was working as a carpenter at the Ohio Steel Foundry, which was located north of and close to the intersection in question. He quit work at 4:30 p. m., went to his car in a parking lot just off of Park Avenue, pulled out into a line of cars going south on Park Avenue and proceeded a short distance to the intersection. It was a bright day and dry. He had worked at the Ohio Steel Foundry for about 60 days before the accident, had gone over the crossing back and forth every day he worked, and was very familiar with it. The automobile ahead of appellee crossed the track.

Appellee testified that when he reached the intersection he stopped his car about 8 or 10 feet from the tracks, looked both ways and listened; that the car windows were down, and neither hearing nor seeing an approaching train he started across the intersection in second gear; that when he was in the middle of the track he discovered the train 3 feet from him to the west, and his car was immediately struck by it in the right front door. The automobile witü the appellee in it was caught on the front of the engine and carried in that position about 500 feet eastward where the train was stopped.

Appellee testified that the pile of earth on the northwest corner shut off his view to such an extent that he had to be almost on the track before he could see down the track to his right. Several other witnesses testified that a car would have to come close to the track, some 5. or 10 feet from it, in ■order to obtain a clear view of the track to the west. A witness, Thornburg, testified for the appellee, that a clear view of the track to the west could be obtained at a point 5 or 10 feet from it. The case having been removed from the State court to the U. S.

District Court on account of diversity of citizenship, is controlled by the Ohio law. The Ohio law places a duty upon a traveler upon a highway when approaching a steam railroad crossing to look and listen for the approach of trains before crossing, at a place and in a manner that will make the looking and listening effective. “The duty is definite, and is that he must look as well as listen, and that he must look from a point and at a time that will make the looking effective to apprise him whether danger is near or not.” Detroit, T. & I. R. Co. v. Rohrs, 114 Ohio St. 493, 503, 151 N.E. 714, 717.

Appellant relies upon that case in support of its contention. The facts in that case are very similar to the facts in the present case including the testimony of the automobile driver that as he approached the crossing he 'both listened for an approaching train and kept looking continuously in both directions for an approaching train, and that he did not see the locomotive until it was just ready to strike his automobile.

The Supreme Court of Ohio said in that case “It is said that with this evidence the case must go to the jury to determine whether Rohrs did look and listen for the approach of trains from the south, and, if the jury find that he did look, then, even though he did not see, still he might recover. * * * Surely it will not do for one to claim the right to recover simply because he has looked and did not see, if the conditions are such that, had he looked, he must have seen.

When he says he did look, and the conditions' establish the fact that any one who looked would have seen, then, if he says he did not see, his own evidence establishes the fact that he did not look, though he may think he did.

To hold otherwise would simply be a manifest absurdity, and the doctrine that the traveler in a vehicle upon the highway when coming to a railroad grade crossing must look and listen, might as well be abandoned if one so placed, in broad daylight, can say that he looked in a given direction where there was a locomotive moving toward the crossing, and not farther than 75 feet away, and that he could not see it. * * * In view of the undisputed evidence in this case as to Rohrs’ negligence, the trial court should have granted the motion to direct a verdict for the defendant.” We believe that ruling is controlling in the present case.

In both the Rohrs case and the present case there was an obstruction to the traveler’s view of the railroad right-of-way when the traveler was a certain distance from the track. But as pointed out in the Rohrs opinion, at a point closer to the track the obstruction to the view no longer existed. As observed in Moss v. Pennsylvania R. Co., 7 Cir., 146 F.2d 673, 676, “That there was such a spot is certain” regardless of just where that spot might be. In the present case the evidence shows that there was a spot where a view of the track and any approaching train was clearly visible.

A picture of the track, filed as an exhibit, shows that at a point 25 feet north of the center of the intersection, there was a clear view of the track to the west as far as the curve to the south, and that a train on the track could without doubt be seen as far distant as the overhead bridge to the southwest, more than 500 feet away. Such evidence should have full consideration on a motion for a directed verdict. Backus v. Taplin, 7 Cir., 81 F.2d 444, 447; A. B. Small Co. v. Lamborn & Co., 267 U.S. 248, 45 S.Ct. 300, 69 L.Ed. 597.

The ruling of the Rohrs case has been approved and followed in several subsequent Ohio cases. Pennsylvania R. Co. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826, 56 A.L.R. 538; Pennsylvania R. Co. v. Moses, 125 Ohio St. 621, 184 N.E. 8; Patton v. Pennsylvania R. Co., 136 Ohio St. 159, 24 N.E.2d 597; Lang, Adm’x v. Pennsylvania R. Co., 59 Ohio App. 345, 18 N.E.2d 271; Grove v. City Ry. Co., 78 Ohio App. 37, 64 N.E.2d 429. The Patton case is the latest ruling of the Supreme Court of Ohio in railroad crossing accident cases, which has been called to our attention.

The Court said in that case, in holding that the trial court should have directed a verdict for the defendant,— “Here was a 60 mile-an-hour train rushing toward him not over 240 feet away when he must have been in a place of safety 40 feet from the tracks. At his slow rate of speed he could have stopped his truck almost instantly.

He proceeded, nevertheless, upon the tracks and attempted to cross over ahead of the train when it was less than three seconds away. “We think it cannot be said that such conduct on his part manifested the exercise of due care, or that his conduct was not the proximate cause of his death.” [136 Ohio St. 159, 24 N.E.2d 601.] In applying the rule in Lang, Adm’x v. Pennsylvania R.

Co. [59 Ohio App. 345, 18 N.E.2d 274], supra, the Court analyzed it as follows: “The rule that such looking and listening must be at such time and place and in such manner as will be effective to accomplish the ends designed thereby, must necessarily comprehend looking and listening at the last time and place-where a traveler could stop the conveyance in which he is riding and avoid a collision between the same and a train or trains-being operated on such railway track or tracks.

The omission so to do, without a reasonable excuse therefor, is negligence and will defeat an action by such person or his administrator for an injury to which such negligence contributes.” (Emphasis added.) Since the law of Ohio, as expressed by the Courts of that State, control the decision in this case, the Ohio rule is not superseded or modified by rulings of the U. S. Supreme Court or of our Court involving the application of the Federal Employers Liability Act or in negligence cases decided prior to April 25, 1938. Ellis v. Union Pac. R. Co., 329 U.S. 649, 653, 67 S.Ct. 598, 91 L.Ed. ___; Erie R. Co. v.

Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. This Court has previously followed the Rohrs ruling in a case from Ohio involving facts quite similar to those in the present case, holding that the District Court erred in not directing a verdict for the railroad company at the close of all the evidence. Baltimore & O. R. Co. v. Joseph, 6 Cir., 112 F.2d 518, certiorari denied, 312 U.S. 682; rehearing denied, 312 U.S. 714.

Following the entry of judgment the appellant moved to set aside the verdict and judgment and for judgment in its favor in accordance with its previous motion for a directed verdict, or in the alternative for a new trial, as provided by Rule 50(b), Federal Rules of Civil Procedure, 28 U.S. C.A. following

section 723c, which motion the trial court overruled. In accordance with the views above stated, this motion-should have been sustained, the verdict and judgment set aside, and judgment entered for the appellant. The case is remanded to the District Court for action in accordance with the above views.