MICHIGAN CENT. R. CO. v. VASTAG, 268 F. 191

EVANS, Circuit Judge (after stating the facts as above). Defendant urges that a careful examination of the evidence will convince us that the accident never occurred at the Howard street crossing, and that it was a physical impossibility for it to have occurred in the manner described by plaintiff.

In support of this position, it is urged that, if plaintiff was caught in the flangeway adjacent the south rail, then he could not have been thrown to the north side of the north rail, and, if he was struck by a rapidly moving west-bound passenger train while thus caught, he would have been carried to the west, whereas he was found at least 15 feet and possibly 35 feet east of the sidewalk. Defendant further insists that in any case there would have been blood marks where he was run over and at the point where he was left unconscious.

This theory, it is claimed, is corroborated by a statement given by plaintiff to a claim agent shortly after the accident, wherein plaintiff stated he was run over at Columbia avenue, a street immediately east of Howard street, but at which crossing there was no sidewalk. After a full and careful examination of all the evidence, we conclude a jury question on this phase of the case was presented. The plaintiff may have rolled or thrown himself violently about, and thus account for his position north of the track and east of the sidewalk.

As to the absence of blood marks, it appears thát several hours elapsed before witnesses examined the premises carefully the following morning, and it does not conclusively appear that the premises remained untouched overnight. Moreover, the amount of blood lost may, under the circumstances, have been small, and wholly absorbed by the clothing. Likewise any statement made by plaintiff shortly after the accident at most only impeaches his sworn testimony. From the entire story we think it was for the jury to draw the proper conclusion.

While plaintiff, in view of the passing freight train, was not in the best position to hear the bell or the whistle, we accept his statement that they were not sounded. Defendant insists, however, that liability, if any, arising out of its breach of duty in this respect, is defeated by plaintiff’s contributory negligence. Certainly defendant’s failure to sound the bell and blow the whistle cannot excuse plaintiff for failing to look or listen for an approaching train. This passenger train was in plain sight. It could have been clearly seen, had plaintiff looked, for a distance of 2 miles.

As he stepped on the tracks it could not have been more than 200 feet away. Distressing as the consequences are, plaintiff’s contributory negligence relieves defendant of any liability due to its failure to ring the bell or blow the whistle. Northern Pacific Ry. Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014; Railroad Co. v. Houston, 95 U. S. 697, 24 L. Ed. 542.

As to the alleged defect in the street crossing, the Indiana statute reads: “That it be the duty of each railroad company whose road or tracks cross, or shall hereafter cross, any street, avenue or alley in any incorporated town or city in the state of Indiana * * * to properly grade and plank or gravel its said road and tracks at its intersection with and crossing of said street, avenue or alley in accordance with the grade of said street or avenue, in such manner as to afford security for life and property at such intersection and crossing.” Defendant concedes a common-law duty equal to that imposed by the statute, but denies dereliction in any respect.

Aside from the happening of the accident, we fail to find any evidence pointing to negligence, or deficiency. None has been suggested. The planks were in good repair and in proper position. No complaint is made concerning them. There had been no widening or deepening of the fiangeway. There 'was no evidence that this structure was not properly or well constructed. In fact, certain offered expert proof that flangeways were usually constructed in this manner was rejected upon plaintiff’s objection.

It is necessary to provide a flangeway, if car and engine wheels are to be provided with flanges and remain on the track. The flanges on these wheels are about 2 inches wide and vary but slightly. A space somewhat wider than the width of the flange is necessary. But a space much wider than 2% inches would not necessarily lessen the danger to the pedestrian. With feet and heels varying in size and shape, no single width could satisfactorily accommodate all. Had the width been greater, it might have been more dangerous, for plaintiff’s heel was 2% inches wide and 3 inches from the back to the front.

Nor can the rule res ipsa loquitur here apply. It is not a case where the flangeway can be entirely eliminated, nor can all possibility of danger be avoided. In fact, the operation of a railroad over a street crossing must necessarily be attended with some danger. This being the case, there is always a possibility of some foot or heel being caught. .It is not a case where a foot thus caught necessarily implies a defect in the crossing. We recognize that in many cases of crossing accidents situations are presented requiring the court to submit the question of negligence to the jury.

But in all of them there is some defect in original construction, or some “wearing away,” either in the rail, or the planks, or in the hole, evidencing some want of repair or neglect in maintenance, some ■ clumsy workmanship or careless inspection, that raises the jury question. In the present case, our attention has not been called to a single suggested change in the structure; and in open court, counsel admitted this was not a case for the application of the rule res ipsa loquitur.

Concluding, as we do, that the evidence fails to support any of the counts, it is unnecessary for us to consider any other defense or assignment of error. The judgment is reversed, and the cause remanded.