SWAN, Circuit Judge.
This action was brought to recover damages for personal injuries sustained by the plaintiff when hit by a moving freight train as he was walking along the defendant's right of way. At the conclusion of the evidence the defendant moved to dismiss for failure of proof of actionable negligence on the part of the defendant and for affirmative proof of contributory negligence on the part of the plaintiff. A denial of this motion is the error chiefly relied upon for reversal of the plaintiff's judgment.
The accident happened about 2:30 a. m. on July 27, 1934, as the plaintiff was proceeding to his home on Hughes street, in Hughestown, Pa. Hughes street is a stubend street ending at the westerly side of the railroad right of way. The next street to the south is Rock street which crosses the single line track at grade. The plaintiff alighted from a friend's automobile at the Rock street crossing and walked along a beaten pathway that runs in a northerly direction adjacent and parallel
The defendant contends, citing Falchetti v. Pennsylvania R. Co., 307 Pa. 203, 160 A. 859; Koontz v. Baltimore & O. R. Co., 309 Pa. 122, 163 A. 212, that the only duty owed to the plaintiff was to refrain from willful or wanton injury because the courts of Pennsylvania have so ruled with respect to persons using a customary longitudinal path, as distinguished from a path crossing the track. The plaintiff denies that such is the local law, but we need not go into this matter since the defendant concedes that the great weight of authority in other states is to the contrary. This concession is fatal to its contention, for upon questions of general law the federal courts are free, in absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. Baltimore & O. Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772; Cole v. Pennsylvania R. Co., 43 F.2d 953, 71 A.L.R. 1096 (C.C.A. 2), and cases cited therein; Redfield v. New York Cent. R. Co., 83 F.2d 62, 65 (C.C. A.8).
Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. Southern Ry. Co. v. Cochran, 29 F.2d 206 (C.C.A.5); New York, N. H. & H. R. Co. v. Kmetz, 193 F. 603 (C.C.A.2); Erie R. Co. v. Burke, 214 F. 247 (C.C.A.2); Robbins v. Pennsylvania Co., 245 F. 435, 441 (C.C.A.6); Pennsylvania R. Co. v. Lackner, 246 F. 931 (C. C.A.3); American Law Institute, Torts, § 334. It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train. Southern Ry. Co. v. Cochran, 29 F.2d 206 (C.C.A.5); Schultz v. Erie R. Co., 46 F.2d 285 (C.C.A.3); St. Louis, S. W. Ry. Co. v. Wilcox, 57 Tex. Civ.App. 3, 121 S.W. 588; Missouri, K. & T. Ry. Co. v. Scarborough, 29 Tex.Civ.App. 194, 68 S.W. 196; St. Louis, S. W. Ry. Co. v. Balthrop (Tex.Civ.App.) 167 S.W. 246; Chesapeake & O. Ry. Co. v. Davis, 58 S.W. 698, 22 Ky.Law Rep. 748; Pruitt v. Southern Ry. Co., 167 N.C. 246, 83 S.E. 350; Scott v. Davis, 216 Mo.App. 530, 270 S. W. 433; cf. Louisville & N. R. Co. v. Marlow, 169 Ky. 140, 183 S.W. 470.
Plaintiff's testimony that the black object which struck him looked like a swinging door was sufficient to take to the jury the question whether he was injured in the manner alleged and whether the defendant was negligent in allowing a door to swing, despite the defendant's testimony that an inspection at Ashley showed all car doors to be closed and sealed.
The main contention of the appellant is that the plaintiff's conduct in walking so close to a moving train in the dark constituted contributory negligence as a matter
As always in judging of negligence, it is a question of the gravity of the danger, coupled with its likelihood, as compared with the opportunity of avoiding it. The B.B. No. 21, 54 F.2d 532, 533 (C.C.A.2). In the case at bar, the opportunity to avoid danger was easily available and the danger was very great, if anything should happen to be projecting from the train; but we cannot say that this particular danger was likely, in view of the testimony of the train checkers that seldom, if ever, had they known a door to swing open. Nor can we say, in view of the cases, that the possibility of being hit by some unusual object projecting from the side of a train is one that ought to be foreseen and enough to charge the plaintiff with contributory negligence as a matter of law, if he remains within reach of it. Schultz v. Erie R. Co., 46 F.2d 285 (C.C.A.3); Pruitt v. Southern Ry. Co., 167 N.C. 246, 83 S.E. 350; Missouri, K. & T. Ry. Co. v. Scarborough, 29 Tex.Civ.App. 194, 68 S.W. 196; St. Louis, S. W. Ry. Co. v. Wilcox, 57 Tex.Civ.App. 3, 121 S.W. 588; Texas & P. Ry. Co. v. Greene, 291 S.W. 929, affirmed (Tex.Com.App.) 299 S.W. 639; Chesapeake & O. Ry. Co. v. Davis, 58 S.W. 698, 22 Ky.Law Rep. 748; Sullivan v. Vicksburg, S. & P. R. Co., 39 La.Ann. 800, 2 So. 586, 4 Am.St.Rep. 239. To us it would seem imprudent to walk, or even to stand, in the dark within a foot of a train moving at the rate of 10 miles an hour; but the fact that recoveries have been allowed under closely similar circumstances in the cases above cited indicates that fair-minded men may hold a different view. This is enough to preclude taking the issue from the jury. Richmond & Danville Railroad Co. v. Powers, 149 U.S. 43, 45, 13 S.Ct. 748, 37 L.Ed. 642; Texas & Pac. Ry. Co. v. Harvey, 228 U.S. 319, 33 S.Ct. 518, 57 L.Ed. 852. Even when a plaintiff has stood so close to the edge of a station platform as to be thrown down by the suction of a swiftly passing train, the question of contributory negligence has been left to the jury. Munroe v. Pennsylvania R. Co., 85 N.J.Law, 688, 90 A. 254, Ann.Cas.1916A, 140. In Delaware & H. R. Co. v. Wilkins, 153 F. 845 (C.C.A.2), this court held that it was contributory negligence for the plaintiff not to step aside beyond the reach of the bucking beam of an engine rounding a curve. This would be apposite if the present plaintiff had been struck by the end of a car, for he must anticipate that some of the cars may overhang the ends of the ties. He is not, however, obliged to anticipate unusual projections from the side of the cars, and from the jury's verdict we must take it that he was injured by a projecting door. We do not think it was error to leave the issue of contributory negligence to the jury.
The appellant contends that error was committed in permitting the plaintiff to testify on redirect examination as to statements he had made to doctors and others concerning the way the accident happened. It is necessary to explain how this came about. On direct examination the plaintiff had testified that he was struck by "a black object that looked like a door to me." On cross-examination he testified that from the time of the accident it had always been his impression that the black object was a door swinging out from a car; that this had always been his claim, and he had told this to his attorneys. He was then confronted with a verified bill of discovery, prepared by his attorneys and attested by him, which alleged that he was unable to state what was the object which the defendant permitted to project from the train, and contained other allegations