When the judgment actually rendered in the court below was for
an amount giving this Court jurisdiction, which amount was reached
by adding to a verdict for $5,000, interest from the time of the
verdict to the time of the entry of the judgment in a district
where the local state law does not permit that to be done, and the
plaintiff below, although excepting to the allowance of interest,
and to the refusal of the court below to permit a remitted, brings
no writ of error to correct the alleged error, this Court cannot
dismiss a writ of error brought by the defendant to review other
rulings in the case.
In an action against a railway company to recover damages for
injuries caused by one of its trains striking a wagon in which the
plaintiff and another woman were seated as it was crossing the
track on a public highway at grade, the negligence of the defendant
having been established, there was further evidence tending to show
that the women were driving slowly and with a safe horse; that the
train was several minutes behind time; that as they approached the
low place at which a train could be seen if one were there, they
stopped to look and listen, but neither saw nor heard anything;
that after stopping they started driving slowly up the hill to a
point at the top between forty and fifty yards from the track,
where the slope commenced, and there they stopped again and
listened, but beard nothing; they then drove slowly down the hill,
both listening all the time, without talking, and heard nothing,
and that just as they got to a cut and the horse had his feet on
the nearest rail, the train came around a curve and the collision
occurred.
Held that the question whether there was
contributory negligence on the part of the plaintiff was properly
submitted to the jury for determination.
This was an action brought by Emma Griffith in the Court of
Common Pleas of Licking County, Ohio, against the Baltimore and
Ohio Railroad Company to recover for injuries received on August 1,
1888, by the collision of a train of that company with the vehicle
in which plaintiff was then being conveyed. The cause was removed,
on the petition of the company, into the Circuit Court of the
United States for the Southern District of Ohio, where it was
tried, and resulted in
Page 159 U. S. 604
a verdict in favor of the plaintiff for $5,000. A motion for a
new trial was made and overruled, and judgment entered on the
verdict, with interest added, to review which this writ of error
was sued out. The charge to the jury by Sage, J., and his opinion
on the motion for new trial, are reported, 44 F. 574, 582.
The following errors assigned were relied on in the brief for
plaintiff in error
"Sixth. The said court erred in refusing to give the ninth
charge asked by the plaintiff in error."
"Seventh. The court erred in refusing to give the tenth charge
asked by the plaintiff in error."
"Tenth. The court erred in overruling the motion of the
plaintiff in error for a new trial."
"Eleventh. Upon the whole record, judgment should have been
rendered in said cause in favor of the plaintiff in error and
against the defendant in error, instead of the judgment which was
rendered."
The instructions thus referred to were as follows:
"9. The testimony in this case shows that the plaintiff was
guilty of negligence contributing to her injury. Such being the
fact, she is not entitled to recover, and your verdict must be for
the defendant."
"10. It was the duty of the plaintiff to stop before driving on
this railroad track, and allow the train to pass before she
attempted to cross, and if she failed so to do, and was thereby
injured, she cannot recover in this case. "
Page 159 U. S. 605
MR. CHIEF JUSTICE FULLER delivered the opinion of the Court.
The verdict was returned June 11, and the motion for a new trial
was overruled, and judgment entered on the verdict, December 12,
1890. The circuit court gave interest on the verdict, and rendered
judgment for $5,154.17 and costs. Plaintiff's counsel excepted to
the allowance of interest, and also to the refusal of the court to
permit a remittitur. Conceding that it is ordinarily within the
discretion of the court below to permit or to deny a remittitur,
Pacific Company v. O'Connor, 128 U.
S. 394, and cases cited, it is argued here that interest
was not allowable on verdicts under the local law; that, in view of
section 966 of the Revised Statutes, the judgment was improperly
increased by the inclusion thereof,
Mass. Benefit Association
v. Miles, 137 U. S. 689, and
that therefore the writ of error should be dismissed for want of
jurisdiction. But if the circuit court committed error in this
regard, plaintiff below brought no writ of error to correct it, and
the question is not open to examination on this record. As the
judgment actually rendered was for an amount which gives us
jurisdiction, we cannot dismiss the writ on the ground that it
should have been for less.
The contention of plaintiff in error is that, on the undisputed
evidence in the case, defendant in error was guilty of contributory
negligence in law, and that the court erred in refusing to direct a
verdict accordingly.
This renders it necessary to make a brief reference to the
evidence.
The plaintiff was riding with her mother in a phaeton buggy from
their home, in the country to Newark, Ohio, the
Page 159 U. S. 606
mother driving. About four miles south from Newark it was
necessary to cross the track of the railroad at a place called
"Locust Grove Crossing," and it was there that the injury was
inflicted. The railroad ran nearly north and south in a cut through
a small hill, and the highway crossed it at right angles,
approaching the crossing through the same hill. The track from the
south came to the crossing on a curve of four degrees through the
cut, which was from twelve to eighteen feet deep, and the slope of
the cut was about 45 degrees. The bottom of the railroad cut was
fifteen feet wide, and the highway as it came down to the track was
about sixteen feet wide, though there was some conflict of evidence
in regard to it. The train was coming from the south, and the buggy
was coming from the west. The field on the west of the track and on
the south of the highway, for a considerable number of feet and up
to the crossing, was covered with growing corn, over ten feet high,
so that, by reason of the cut and the corn, there was no view of
the track by a person coming from the west on the highway until he
got down into the railway cut. A stream called "Hog Run" flowed
westerly under the track at the bridge of the railroad, 2,430 feet
south of the crossing, and, after making a curve northerly, passed
under a county bridge on the highway in question. The highway from
the county bridge ran easterly until about three hundred feet from
the crossing, and thence due east to the crossing, and, after
leaving that bridge, went by a low place from which the train could
be seen coming from the south, until it ran into the cut, which
commenced about six hundred feet south of the crossing, and on a
curve to it. The highway proceeding towards the crossing passed up
the hill into the cut, and then there was no view of the railroad
whatever to the south, on account of the highway's being cut down
and the growing corn on that side. The highway was graded down,
leaving a bank on both sides, the descent being gradual, and the
highway cut deepening until it reached the place where it crossed
at the railroad level at the bottom of the cut. Just as the horse
and buggy reached the west rail, a passenger train, going at the
rate of forty to forty-five miles an hour, and giving, as alleged,
no
Page 159 U. S. 607
signals of its approach to the crossing, struck the horse in the
neck, wrecked the buggy, knocked the plaintiff about forty feet,
and inflicted permanent injuries; the mother, just before the
stroke, doing all she could to pull the horse to the left, across
the highway, to get it out of the way.
It seems to be conceded, and properly, that the jury were
justified in finding that the railroad company was guilty of
negligence. The case stated in the complaint was on the common law
liability of defendant for failure to give signals, but the
statutes of Ohio may be referred to as showing what constituted
negligence in that regard. And they provided:
"SEC. 3336. Every company shall have attached to each locomotive
engine passing upon its road a bell of the ordinary size in use on
such engines, and a steam whistle, and the engineer or person in
charge of an engine in motion, and approaching a turnpike, highway,
or town crossing, upon the same level therewith, and in like manner
when the road 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 bell continuously until the engine passes
such road crossing; but the provisions of this section shall not
interfere with the proper observance of any ordinance passed by any
city or village council regulating the management of railroad
locomotives and steam whistles thereon within the limits of such
city or village."
"SEC. 3337. Every engineer or person in charge of any such
engine who fails to comply with the provisions of the preceding
section shall be personally liable to a penalty of not less than
fifty nor more than one hundred dollars, to be recovered by civil
action at the suit of the state, in the court of common pleas of
any county wherein any such crossing is, and the company in whose
employ such engineer or person in charge of an engine is, as well
as the person himself, 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."
1 Rev.Stat. Ohio, 960.
There was evidence that no bell was rung, and that the
Page 159 U. S. 608
engine whistled, if at all at the railroad bridge, almost half a
mile from the crossing.
The jury were warranted in finding that no sufficient warning
was given of the approach of the train, which was running at the
speed of fifty-eight to sixty-six feet a second, and that the
collision was caused by the negligence of those in charge of the
train.
Cleveland, Columbus, &c. Railroad v. Crawford,
24 Ohio St. 631.
It was held in
Cleveland, Columbus, Cincinnati &
Indianapolis Railroad v. Elliott, 28 Ohio St. 340, that the
omission to ring the bell or sound the whistle at public crossings
is not of itself sufficient ground to authorize a recovery if the
injured party might, notwithstanding such omission, by the exercise
of ordinary care, have avoided the accident, and in
Pennsylvania Company v Rathgeb, 32 Ohio St. 66, that if
all the material facts touching alleged negligence of the plaintiff
be undisputed, or be found by the jury, and admit of no rational
inference but that of negligence, in such case the question of
contributory negligence becomes a matter of law merely, and the
court should so charge the jury. But these were cases in which the
court was of opinion that the omission to give the ordinary signals
by bell or whistle, as, in itself, it did not absolve the plaintiff
from the necessity of exercising ordinary care, did not furnish
sufficient ground for recovery, because, by due diligence in the
use of ordinary precautions by the person injured, the consequence
of the defendant's negligence might have been avoided.
In
Continental Improvement Co. v. Stead, 95 U. S.
161, which was a case of collision between a train of
passenger cars of the plaintiff in error and the wagon of the
defendant in error, Mr. Justice Bradley, speaking for the Court,
stated the duties and obligations resting upon travelers and
railroad companies thus:
"If a railroad crosses a common road on the same level, those
traveling on either have a legal right to pass over the point of
crossing, and to require due care on the part of those traveling on
the other, to avoid a collision. Of course, these mutual rights
have respect to other relative rights subsisting
Page 159 U. S. 609
between the parties. From the character and momentum of a
railroad train and the requirements of public travel by means
thereof, it cannot be expected that it shall stop and give
precedence to an approaching wagon to make the crossing first; it
is the duty of the wagon to wait for the train. The train has the
preference and right of way. But it is bound to give due warning of
its approach so that the wagon may stop and allow it to pass, and
to use every exertion to stop if the wagon is inevitably in the
way. Such warning must be reasonable and timely. But what is
reasonable and timely warning may depend on many circumstances. It
cannot be such if the speed of the train be so great as to render
it unavailing. The explosion of a cannon may be said to be a
warning of the coming shot, but the velocity of the latter
generally outstrips the warning. The speed of a train at a crossing
should not be so great as to render unavailing the warning of the
whistle and bell, and this caution is especially applicable when
their sound is obstructed by winds and other noises, and when
intervening objects prevent those who are approaching the railroad
from seeing a coming train. In such cases, if an unslackened speed
is desirable, watchmen should be stationed at the crossing."
"On the other hand, those who are crossing a railroad track are
bound to exercise ordinary care and diligence to ascertain whether
a train is approaching. They have, indeed, the greatest incentives
to caution, for their lives are in imminent danger if collision
happen, and hence it will not be presumed, without evidence, that
they do not exercise proper care in a particular case. But
notwithstanding the hazard, the infirmity of the human mind in
ordinary men is such that they often do manifest a degree of
negligence and temerity entirely inconsistent with the care and
prudence which is required of them -- such, namely, as an
ordinarily prudent man would exercise under the circumstances. When
such is the case, they cannot obtain reparation for their injuries
even though the railroad company be in fault. . . ."
"For, conceding that the railway train has the right of
precedence of crossing, the parties are still on equal terms as to
the exercise of care and diligence in regard to their relative
Page 159 U. S. 610
duties. The right of precedence referred to does not impose upon
the wagon the whole duty of avoiding a collision. It is accompanied
with, and conditioned upon, the duty of the train to give due and
timely warning of its approach. The duty of the wagon to yield
precedence is based upon this condition. Both parties are charged
with the mutual duty of keeping a careful lookout for danger, and
the degree of diligence to be exercised on either side is such as a
prudent man would exercise under the circumstances of the case in
endeavoring fairly to perform his duty. . . ."
"The mistake of the defendant's counsel consists in seeking to
impose on the wagon too exclusively the duty of avoiding collision,
and to relieve the train too entirely from responsibility in the
matter. Railway companies cannot expect this immunity so long as
their tracks cross the highways of the country upon the same level.
The people have the same right to travel on the ordinary highways
as the railroad companies have to run trains on the railroads."
And see Delaware, Lackawanna &c. Railroad v.
Converse, 139 U. S. 469,
139 U. S.
472.
Tested by these principles, we think the circuit court did not
err in leaving the case to the jury.
There was evidence tending to show that these women were driving
slowly, and with a safe horse; that the train was several minutes
behind time; that, as they approached the low place at which a
train could be seen if one were there, they stopped to look and
listen, but neither saw nor heard anything; that, after stopping,
they started driving slowly up the hill to a point at the top
between forty and fifty yards from the track, where the slope
commenced, and there they stopped again, and listened, but heard
nothing; they then drove slowly down the hill, both listening all
the time, without talking, and heard nothing, and that just as they
got to the cut, and the horse had his feet on the nearest rail, the
train came around the curve, and the collision occurred.
Since the absence of any fault on the part of a plaintiff may be
inferred from circumstances, and the disposition of persons to take
care of themselves and to keep out of difficulty may properly be
taken into consideration,
Railroad Co.
v.
Page 159 U. S. 611
Gladmon, 15 Wall. 401, it is impossible to hold in the
light of this evidence, as matter of law, that the conduct of
plaintiff was such as to defeat a recovery. The rule was thus
expounded by Mr. Justice Lamar in
Grand Trunk Railway v.
Ives, 144 U. S. 408,
144 U. S.
417:
"There is no fixed standard in the law by which a court is
enabled to arbitrarily say in every case what conduct shall be
considered reasonable and prudent, and what shall constitute
ordinary care, under any and all circumstances. The terms 'ordinary
care,' 'reasonable prudence,' and such like terms, as applied to
the conduct and affairs of men, have a relative significance, and
cannot be arbitrarily defined. What may be deemed ordinary care in
one case may, under different surroundings and circumstances, be
gross negligence. The policy of the law has relegated the
determination of such questions to the jury, under proper
instructions from the court. It is their province to note the
special circumstances and surroundings of each particular case, and
then say whether the conduct of the parties in that case was such
as would be expected of reasonable, prudent men, under a similar
state of affairs. When a given state of facts is such that
reasonable men may fairly differ upon the question as to whether
there was negligence or not, the determination of the matter is for
the jury. It is only where the facts are such that all reasonable
men must draw the same conclusion from them that the question of
negligence is ever considered as one of law for the courts."
Judgment affirmed.