No. 4373.

9 F.2d 290 (1925)


Circuit Court of Appeals, Sixth Circuit.

December 4, 1925.

Attorney(s) appearing for the Case

Louis H. Winch, of Cleveland, Ohio (Payer, Winch, Minshall & Karch, of Cleveland, Ohio, on the brief), for plaintiff in error.

Clan Crawford, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error.

Before DONAHUE, MOORMAN, and KNAPPEN, Circuit Judges.


A statute of the state required plaintiff, as driver of a vehicle engaged in the transportation of school children, to bring it to a "full stop before crossing the tracks of any railroad or interurban electric line and not to proceed across such tracks until absolutely certain that no car or train is approaching from either direction." Gen. Code Ohio, § 7731 — 2 (110 Ohio Laws, p. 46). This statute was obviously enacted in the interest of children traveling in school busses, and not for the protection of the driver. But it imposed a duty on the plaintiff, and if, in failing to perform it, he so contributed to the accident that, but for his failure, it would not have occurred, he cannot recover.

It is contended for the railroad that, measured by the demands of the statute, it was his duty to know that a train was not approaching before attempting to cross the track, and the fact that he was struck on the crossing was of itself such evidence of breach of duty as to amount in law to negligence. We do not so construe the statute. The phrase "absolutely certain," in our opinion, refers to the state of mind of the ordinarily prudent driver, and not to the fact, for one may be certain (the qualifying word "absolutely" adds no strength to the term) that a train is not approaching when in fact one is. What the statute requires is the stopping of the vehicle, and the exercise of the highest degree of care permissible under the circumstances to determine whether a train is approaching, which, when done, with the result that no approaching train is discovered, justifies an attempt to cross the track. It cannot, we think, be said as a matter of law that plaintiff failed to exercise the highest degree of care permissible under the circumstances, and hence that question, as also that of the alleged negligence of the defendant in failing to signal the approach of the train to the crossing, was, under the evidence, for the jury. Frese v. C., B. & Q. Ry., 263 U.S. 1, 44 S.Ct. 1, 68 L. Ed. 131, though analogous, is not controlling, since it was held there that the plaintiff, who failed to perform his duty under the statute, could not recover on the ground that the injury might have been prevented, if his subordinate had not also failed to perform his duty.

There was also evidence requiring the submission of the case to the jury on the theory that the engineer failed to exercise due care to avoid the collision after imminent danger of it became known or reasonably apparent to him. He saw the team when 1,200 or 1,300 feet from the crossing, and nothing was done by him further to warn plaintiff of the approach of the train or to abate its speed until it had traveled about half the intervening distance. His claim that plaintiff pulled the horses when the whistle was blown, as if to stop them, thus causing a delay, and bringing about the collision, is denied by plaintiff. We think it was for the jury to determine whether he was guilty of negligence proximately causing the injury, after the peril of plaintiff became known or was reasonably apparent to him.

The judgment is reversed.


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