Appeal from the District Court of the United States for the Western District of Pennsylvania; Robert M. Gibson, Judge.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
BUFFINGTON, Circuit Judge.
In the court below John E. Schultz, hereafter called plaintiff, brought suit against Erie Railroad Company, hereafter called defendant, to recover damages for personal injury inflicted on him by the alleged negligence of defendant while operating a train. After hearing plaintiff's proofs, the trial judge granted a compulsory nonsuit on two grounds, first, that plaintiff was guilty of contributory negligence; and, second, that there was no proof of negligence of defendant. On its refusal to take off such nonsuit, this appeal was taken, and the questions here involved are, was the court justified in adjudging plaintiff guilty of contributory negligence? and, if not, were the proofs such as to require the question of submission to the jury of the question of defendant's negligence?
Turning to the proofs, it appears that plaintiff, a pedestrian, came along Kenton avenue, in the city of Marion, Ohio, to a railroad crossing. He crossed two tracks belonging to the Big Four Railroad, a company which has no interest and whose tracks have no bearing on the case. The defendant had three tracks beyond, on one of which its freight train was then passing at "about ten miles per hour or better." The proof is that plaintiff stopped and stood on the boardwalk of the crossing and on a track of the other railroad. In that regard the evidence was:
"Q. And you say you stopped shortly before you reached the tracks? A. Yes, sir.
"Q. About how far from the tracks? A. Well, right at the edge of the sidewalk, on this public highway, right at the edge of the sidewalk on the private walk, like the edge of the sidewalk here.
"Q. You were on the sidewalk, but how close to the railroad track? A. About five feet.
"Q. That is, from the first track? A. The first track; yes, sir.
"Q. How long did you remain standing there? A. Until the watchman yelled or hollered, give us the signal to advance, because the freight was close then. * * *
"Q. And when you advanced, how far did you say -- You say you went to the center of the second Big Four track? A. Yes, sir.
"Q. You are positive about that? A. Yes, sir.
"Q. And what happened then? A. Well, I heard someone approaching on the walk; I happened to glance to my right, and the more I glanced, all of a sudden I was gripped, the left side of my sheepskin coat, knocked off my feet alongside the car, and dragged on down the tracks. * * *
"Q. You are quite positive about the wire or thing that caught you, are you? A. Very positive, yes, sir, because I ...