Before HASTINGS, Chief Judge, CASTLE, Circuit Judge, and MERCER, District Judge.
Defendant prosecutes this appeal to review a judgment entered against it upon a verdict of the jury empaneled to try this action for damages for personal injuries sustained by plaintiff in a collision between a truck driven by plaintiff and one of defendant's trains. Errors relied upon for reversal, among others, relate to the failure of the trial court to grant defendant's motions for a directed verdict and its motion to set aside the verdict, or, in the alternative, for a new trial.
The accident in question occurred on February 7, 1954. About noon, on that day, plaintiff was driving a tractor-trailer combination east on United States Highway 224 near Findlay, Ohio. The day was clear and the road was dry. As plaintiff approached a grade crossing of Highway 224 and defendant's tracks, he saw a south-bound freight train crossing the higway in front of him. When he saw the train, he removed his foot from the accelerator and let his vehicle decelerate by reason of engine drag and loss of power occasioned by that act. When plaintiff was about 600 feet from the crossing, he saw the caboose of the train clear the highway crossing.He then accelerated to a speed which he estimated at 30 to 35 miles per hour. When he reached a point about 150 feet from the crossing, he looked to the right and saw a north-bound train approaching, which was then about 600 feet south of the crossing. Plaintiff then applied his brakes and guided his vehicle back and forth across the highway attempting to stop. He was unable to stop. The front of his tractor collided with the third unit of the three-unit diesel engine of the north-bound train. A state highway patrolman who investigated the accident testified that there were skid marks on the highway for a distance in excess of 113 feet which led to the rear wheels of plaintiff's trailer-tractor combination. Plaintiff's trailer was 32 feet in length. The over-all length of plaintiff's vehicle was the length of the trailer, plus the length of the tractor which he was driving on that date. It thus appears that plaintiff applied his brakes at a point more than 150 feet west of the crossing. Plaintiff testified that, at the rate of speed at which he was traveling at the time he applied his brakes, it would require anywhere from 150 to 190 feet to bring his tractor-trailer unit to a stop, with the total weight and distribution of the load he was then carrying.
At the place of the occurrence the highway crosses defendant's railroad tracks at approximately a right angle. The crossing is level and is marked by a cross-buck crossing signs and a prior warning sign as required by State statute. The only fixed obstruction of a motorist's view to the South was a house located on the south side of the highway some 500 feet west of the crossing. There also was a depression in the highway which reached its low point some 200 feet west of the crossing which, according to plaintiff's testimony, obstructed plaintiff's view to the south as he traveled down-grade to the low point thereof. The only other obstruction of plaintiff's vision as he approached the crossing on the day in question, was the south-bound train which had just passed over the crossing. In this respect, the plaintiff testified that he first saw the north-bound train when the front of the engine of that train came into view from behind the caboose of the southbound train. Plaintiff had made numerous trips over Highway 224 between Chicago and New York prior to the day of the accident, although he did testify he had never passed this particular crossing before.
The question is not open to us for decision as a matter of first impression. When we apply the law of Ohio, as we must do, Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188, as pronounced by reported opinions of the appellate courts of that State, we must conclude that the trial court erred in denying defendant's motion for a directed verdict.
The law of Ohio relating to the duty of care required of a motorist approaching a railroad grade crossing is succinctly summarized by the Supreme Court of that State in the language from two of its reported opinions as follows:
"The law recognizes the fact that ordinarily, because of unalterable circumstances, railroad companies in the operation of fast-moving trains cannot be responsible for gradecrossing collisions, and that the burden of avoiding such collisions rests, for the most part, upon the operators of vehicles using such crossings. This rule is made necessary because railroad trains are, in their operation, confined to fixed tracks, and because of their weight and momentum, cannot be readily stopped within a short distance or space of time." Woodworth v. New York C. R. Co., 149 Ohio St. 543, 80 N.E.2d 142, 146.
"When a traveler upon a public highway approaches a steam railway which intersects at grade the highway, with one or more tracks, with an intention of crossing over, it is the duty of such traveler, before going upon the railway, to look both ways and listen for the approach of trains; and 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. When the view of such traveler in either direction is temporarily obscured by a passing train, smoke, steam, or dust arising therefrom, it is the duty of such traveler to defer his crossing and remain in a place of safety until such obstruction has passed away and a clear view is afforded." Pennsylvania R. Co. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826, 56 A.L.R. 538.
See to the same effect, Patton v. Pennsylvania R. Co., 136 Ohio St. 159, 24 N.E.2d 597; Toledo T. R. Co. v. Hughes, 115 Ohio St. 562, 154 N.E. 916; Detroit T. & I. R. Co. v. Rohrs, 114 Ohio St. 493, 151 N.E. 714; Reed v. Detroit, T. & I. R. Co., Ohio App., 132 N.E.2d 776; Bowman v. Baltimore & O. R. Co., 86 Ohio App. 129, 90 N.E.2d 390; Cincinnati, M. & D. M. Freight Co. v. Louisville & N. R. Co., 56 Ohio App. 246, 10 N.E.2d 448.
A brief review of the factual circumstances shown by the evidence in several of the above cases reveals the strict manner in which the Ohio Courts impose the rule against a plaintiff in grade-crossing collision cases.
In the Woodworth case, supra, the existence of floodlights in close proximity to a railroad crossing which might be confused with the headlight of an approaching train was held to be a circumstance which required the deceased motorist to take added precautions sufficient to avoid a collision.
It appears from the opinion in Toledo T. R. Co. v. Hughes, 115 Ohio St. 562, 154 N.E. 916, that the collision occurred at night when automatic warning signals installed at the crossing were not working and when the crossing was obscured by heavy fog. In Patton v. Pennsylvania R. Co., 136 Ohio St. 159, 24 N.E.2d 597, 600, a collision occurred at night, when the atmosphere was heavy and cloudy. A motorist's view down the tracks was limited to some 300 feet until a point quite near the crossing was reached. To an argument that the atmospheric conditions and noise prevented the driver from detecting the approach of the train in time to avoid the collision, the court said that such circumstances merely required him to take greater precautions and, "under such circumstances, to insure his safety, it may have been his duty to stop before going upon the tracks."
Continental Baking Co. v. Pennsylvania R. Co., 87 Ohio App. 505, 96 N.E.2d 258, 262, involved a grade-crossing collision which occurred during darkness on a cold, snowy morning, and which involved a train upon which the court found there were no lights burning. The court held the driver guilty of contributory negligence, saying, 96 N.E.2d at 262: "Plaintiff's driver was bound to listen as well as look as he was about to cross the tracks. He looked but could not see the train because the night was dark and the train was dark. Under ...