Appeal from the District Court of the United States for the District of Connecticut.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
Katherine Markar, administratrix, and Joseph Rakowski, appellees, sued for loss of life of the former's intestate, and for personal injuries to the latter which were occasioned by the collision of a motorcar, in which both were passengers, and a train, on January 18, 1933, at 6:30 p.m., while crossing the appellant's railroad tracks on Columbia avenue in the town of Willimantic, Conn. It was a regular passenger train proceeding east. At the time, it was dark. The roadbed had a single track running east and west; the highway running northeast and southwest. The railroad tracks crossed the highway at a 22 deg. 39" angle. It is a twenty-foot concrete highway, much traveled, and appellant was directed by the Public Utilities Commission to install and put in operating condition visible signals. Since that order, traffic had increased considerably. It had a railroad crossing sign 18 feet above the ground, and a blinker light on the right hand side of the highway 7 feet 2 inches above the ground. Another blinker light was maintained on the opposite side of the track. There were no obstructions to a view up the track from which the train came.
As they approached the railroad track, they were following a large covered truck -- 9 feet high and 7 1/2 feet wide -- and remained from 12 to 15 feet to its rear. Appellees' witnesses say that this obstructed the view of the blinker light on the side from which the train came. The appellees' intestate and appellee Rakowski knew of the crossing and were on the lookout for the blinker light. Their motorcar undertook to pass the truck on the highway, but motorcars coming in the opposite direction prevented their doing so. When they passed the blinker light, which was positioned 40 feet from the crossing, they stopped about 7 to 10 feet from the tracks, and looked in both directions. The large truck in front of them sped across the track, but, as the motor car proceeded, it was struck at the crossing by the locomotive.
Appellees' witnesses say the headlight was not lit on the locomotive, and no signal of the train was sounded, although those in the motorcar were listening intently. The evidence was contradictory as to whether or not the headlight on the locomotive was lighted, and whether or not a whistle was blown, or bell rung, for the crossing. The court submitted to the jury claims of negligence as follows:
(1) Failure to have a headlight;
(2) Failure to ring a bell or sound a whistle;
(3) Failure to keep a proper lookout for the crossing by the engineer or fireman;
(4) Failure adequately to protect the crossing, which the court said might be found by the jury to be extrahazardous, and in the protection of which the appellant might have done something over and above what the Public Utilities Commission required;
(5) In negligently operating its train across the highway crossing at an excessive rate of speed; and
(6) That negligence might be predicated upon speed, even though the appellant gave the statutory signals, had headlights burning, and furnished blinker lights on the highway.
The court charged that recovery might be had on any one of these six allegations of negligence, and, if the plaintiff established by a fair preponderance of evidence, that the appellant was guilty of any one of the six claims, they might find it liable, providing that the negligence was the proximate cause of the collision. The court charged: "If you shall find that the plaintiff has established by a fair preponderance at least one ground of negligence on the part of the defendant which was a direct cause of the accident, * * * then your verdict should be in each case for the plaintiff. * * *"
At the end of the testimony, the court denied the motion of the appellant to dismiss the claim of negligent operation of the train because of excessive speed. The speed of the train was 60 miles per hour. There were no restrictive orders against speed by the Public Utilities Commission. We think that the claim of excessive speed was not proven, nor should the court have permitted the jury to find the appellant negligent by reason of the speed of the train. Bassett v. Delaware & H. Co. (C.C.A.) 62 F.2d 74; L.I.R.R. Co. v. Darnell, 221 F. 191 (C.C.A. 2). To be sure negligence may be predicated upon a failure to observe a custom to slow down trains at a particular crossing (Miller v. Union Pacific R. Co., 290 U.S. 227, 54 S. Ct. 172, 78 L. Ed. 285) but such claim of fault is ...