MANTON, Circuit Judge.
On May 13, 1922, the defendant in error was a passenger going from Chicago, Ill., to Freeland, Pa., on an express train owned and operated by the plaintiff in error, and was severely injured when the car in which she was riding, with others, was derailed east of the Lake street crossing near North Leroy station in New York.
The train was proceeding easterly at 60 miles an hour. Just before the derailment, an automobile came into collision with the locomotive at the Lake street crossing. The sole occupant of the automobile was killed. North Leroy station is on the main line, a few miles east of Batavia, N. Y., and crosses at grade and at right angles. There are three tracks, east-bound, westbound, and a passing siding. The east-bound is the southerly track, the west-bound is in the middle, and the track on the north is the siding. There is an automatic warning signal of the banjo type on both sides of this crossing. It is mounted on a steel post, and- in the center of the banjo is a glass disc, and a red flag drops down when the train is within ringing distance. The bell commences to -ring a warning. The signal continues to operate until the last ear of the train coming from either direction has cleared the crossing. This signal was in operation at the time of the collision. Lake street is a state highway and is a busy thoroughfare. The station is 455 feet east of the crossing. The station siding runs westerly from the east-bound main track, and the frog of the siding where it enters the west-bound track is 837 feet distant. There is a bridge about 1,617 feet from Lake street.A snow fence is .situated along the right of way of the railroad west of Lake street, about 70 feet south from the southerly rail of the track. There is á descending grade in the vicinity of Lake street. The drop is about 20 feet from Lake street to a point about one mile east of Lake street.
The traveler upon the highway approaching the railroad tracks, going from south to north on Lake street, in the direction the automobilist was proceeding, would have a view which would be somewhat obstructed by the snow fence. This fence was about 311 feet long. There is a rise in Lake street proceeding toward the crossing. The automatic type of signal used at the crossing was prescribed by the Public Service Commission. About the time the automobilist was crossing, a freight train of 80 cars passed in the opposite direction from which the train which struck him was coming. It had just about passed the crossing. There was a rumble of the ears of this passing train, which may have drowned out the signals for the crossing which it is claimed were given by the on-coming passenger train. Am automobilist, intending to cross to the opposite side of the track, said he did not hear the warning signals. The passing freight train would also put in operation tha crossing signals and exhibit the red light of danger.
After the collision with the automobile, the small wheels of the locomotive left the track and the train went about 1,800 feet to half a mile before stopping. The engine remained upright, but off the track, and some of the ears went over the embankment at various angles; the car in which the defendant in error was seated among them. There is evidence that parts of the automobile became stuck firmly under the locomotive, and marks of the gouging out ox che bed of the railroad were found. Plaintiff in error claims that the derailment of the cars was brought about through no fault of it, but was due to the collision of the automobile, and that the latter was solely at fault for the collision with the locomotive. The [84]*84defendant in error’s claim of negligence is that the engineer failed to operate the train carefully and was in part at fault for the collision at the crossing; also that the plaintiff in error was guilty of negligence in not maintaining gates or flagman at this crossing. These respective claims were submitted to a jury and the verdict returned in favor of the defendant in error.
It is argued here that the court should have directed a verdict for the plaintiff in error, and that error was committed in permitting a recovery to be had upon the theory that it was negligent in failing to have a flagman or gates at the crossing. Where a passenger is injured by the derailment of the train, there is a presumption of negligence on the part of the carrier, which, in the absence of some explanation or proof to the contrary, is sufficient to sustain a verdict against it for such derailment is considered prima facie a breach of the contract to carry safely. Patton v. Tex., etc., Ry., 179 U. S. 663, 21 S. Ct. 275, 45 L. Ed. 361; Gleeson v. Va. R. Co., 140 U. S. 435, 11 S. Ct. 859, 35 L. Ed. 458; Plumb v. Richmond Light Co., 233 N. Y. 285, 135 N. E. 504, 25 A. L. R. 685. The fact of the occurrence warrants the inference of negligence, and the doctrine of res ipsa loquitur comes into application. This means that, when the evidence is all in, the question for the jury is whether the preponderance is with the plaintiff. The explanations made, especially if given by interested witnesses, are for the jury. Chicago v. Irving, 234 F. 562, 148 C. C. A. 328.
The danger of collisions at crossings and' the danger resulting from derailments must always be considered by those in charge of the transportation of passengers. The management and control of the transportation is wholly confided to the employee of the railroad company, and the passenger cannot be expected to be on the watch, either as to its management or as to dangers from collision. Therefore, when a derailment occurs, there arises a presumption of negligence on the part of the carrier. This presumption arises because of the duty of the carrier to exercise the highest degree of care in the management and operation of its trains. It is required to exercise that degree of care and skill to avoid the accident which human prudence and foresight should have suggested under the circumstances.
If, as it is argued by the plaintiff in error, the derailment was caused by parts of the automobile becoming intermingled with the 'trucks of the locomotive, the question of fault on the part of the railroad company which in any way contributed to the collision at the crossing is important. The trial court let the jury say whether the engineer exercised reasonable skill and precaution to avoid the accident, exercising such skill and foresight as was commensurate with the situation, and said that, if he failed in the circumstances, Ms failure entitled the plaintiff to recover. That timely signal for the crossing should have been given could not be questioned. The engineer knew or was charged with knowledge of the obstructions to view at the crossing; with the fact that on a parallel track a freight train consisting of 80 empty cars would put in operation the warning signal, and might drown the signals of his oncoming passenger train, and thus confuse the automobilists on Lake street. He may have taken the warning signal as advising Mm of the passage of the freight train. The engineer was likewise obliged to take these facts into his calculations. He testified that he saw the automobilist approach, and he lost sight of him, and, when he next saw him, he was just coming out of the snow fence, and at that time the engineer was 400 or 500 feet away. There was the snow fence, a building, and a train proceeding in- the opposite direction to obstruct his view. A witness who said he. was on the opposite side of the track, intending to cross Lake street, testified that he did not hear the whistle of the locomotive.
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MANTON, Circuit Judge.
On May 13, 1922, the defendant in error was a passenger going from Chicago, Ill., to Freeland, Pa., on an express train owned and operated by the plaintiff in error, and was severely injured when the car in which she was riding, with others, was derailed east of the Lake street crossing near North Leroy station in New York.
The train was proceeding easterly at 60 miles an hour. Just before the derailment, an automobile came into collision with the locomotive at the Lake street crossing. The sole occupant of the automobile was killed. North Leroy station is on the main line, a few miles east of Batavia, N. Y., and crosses at grade and at right angles. There are three tracks, east-bound, westbound, and a passing siding. The east-bound is the southerly track, the west-bound is in the middle, and the track on the north is the siding. There is an automatic warning signal of the banjo type on both sides of this crossing. It is mounted on a steel post, and- in the center of the banjo is a glass disc, and a red flag drops down when the train is within ringing distance. The bell commences to -ring a warning. The signal continues to operate until the last ear of the train coming from either direction has cleared the crossing. This signal was in operation at the time of the collision. Lake street is a state highway and is a busy thoroughfare. The station is 455 feet east of the crossing. The station siding runs westerly from the east-bound main track, and the frog of the siding where it enters the west-bound track is 837 feet distant. There is a bridge about 1,617 feet from Lake street.A snow fence is .situated along the right of way of the railroad west of Lake street, about 70 feet south from the southerly rail of the track. There is á descending grade in the vicinity of Lake street. The drop is about 20 feet from Lake street to a point about one mile east of Lake street.
The traveler upon the highway approaching the railroad tracks, going from south to north on Lake street, in the direction the automobilist was proceeding, would have a view which would be somewhat obstructed by the snow fence. This fence was about 311 feet long. There is a rise in Lake street proceeding toward the crossing. The automatic type of signal used at the crossing was prescribed by the Public Service Commission. About the time the automobilist was crossing, a freight train of 80 cars passed in the opposite direction from which the train which struck him was coming. It had just about passed the crossing. There was a rumble of the ears of this passing train, which may have drowned out the signals for the crossing which it is claimed were given by the on-coming passenger train. Am automobilist, intending to cross to the opposite side of the track, said he did not hear the warning signals. The passing freight train would also put in operation tha crossing signals and exhibit the red light of danger.
After the collision with the automobile, the small wheels of the locomotive left the track and the train went about 1,800 feet to half a mile before stopping. The engine remained upright, but off the track, and some of the ears went over the embankment at various angles; the car in which the defendant in error was seated among them. There is evidence that parts of the automobile became stuck firmly under the locomotive, and marks of the gouging out ox che bed of the railroad were found. Plaintiff in error claims that the derailment of the cars was brought about through no fault of it, but was due to the collision of the automobile, and that the latter was solely at fault for the collision with the locomotive. The [84]*84defendant in error’s claim of negligence is that the engineer failed to operate the train carefully and was in part at fault for the collision at the crossing; also that the plaintiff in error was guilty of negligence in not maintaining gates or flagman at this crossing. These respective claims were submitted to a jury and the verdict returned in favor of the defendant in error.
It is argued here that the court should have directed a verdict for the plaintiff in error, and that error was committed in permitting a recovery to be had upon the theory that it was negligent in failing to have a flagman or gates at the crossing. Where a passenger is injured by the derailment of the train, there is a presumption of negligence on the part of the carrier, which, in the absence of some explanation or proof to the contrary, is sufficient to sustain a verdict against it for such derailment is considered prima facie a breach of the contract to carry safely. Patton v. Tex., etc., Ry., 179 U. S. 663, 21 S. Ct. 275, 45 L. Ed. 361; Gleeson v. Va. R. Co., 140 U. S. 435, 11 S. Ct. 859, 35 L. Ed. 458; Plumb v. Richmond Light Co., 233 N. Y. 285, 135 N. E. 504, 25 A. L. R. 685. The fact of the occurrence warrants the inference of negligence, and the doctrine of res ipsa loquitur comes into application. This means that, when the evidence is all in, the question for the jury is whether the preponderance is with the plaintiff. The explanations made, especially if given by interested witnesses, are for the jury. Chicago v. Irving, 234 F. 562, 148 C. C. A. 328.
The danger of collisions at crossings and' the danger resulting from derailments must always be considered by those in charge of the transportation of passengers. The management and control of the transportation is wholly confided to the employee of the railroad company, and the passenger cannot be expected to be on the watch, either as to its management or as to dangers from collision. Therefore, when a derailment occurs, there arises a presumption of negligence on the part of the carrier. This presumption arises because of the duty of the carrier to exercise the highest degree of care in the management and operation of its trains. It is required to exercise that degree of care and skill to avoid the accident which human prudence and foresight should have suggested under the circumstances.
If, as it is argued by the plaintiff in error, the derailment was caused by parts of the automobile becoming intermingled with the 'trucks of the locomotive, the question of fault on the part of the railroad company which in any way contributed to the collision at the crossing is important. The trial court let the jury say whether the engineer exercised reasonable skill and precaution to avoid the accident, exercising such skill and foresight as was commensurate with the situation, and said that, if he failed in the circumstances, Ms failure entitled the plaintiff to recover. That timely signal for the crossing should have been given could not be questioned. The engineer knew or was charged with knowledge of the obstructions to view at the crossing; with the fact that on a parallel track a freight train consisting of 80 empty cars would put in operation the warning signal, and might drown the signals of his oncoming passenger train, and thus confuse the automobilists on Lake street. He may have taken the warning signal as advising Mm of the passage of the freight train. The engineer was likewise obliged to take these facts into his calculations. He testified that he saw the automobilist approach, and he lost sight of him, and, when he next saw him, he was just coming out of the snow fence, and at that time the engineer was 400 or 500 feet away. There was the snow fence, a building, and a train proceeding in- the opposite direction to obstruct his view. A witness who said he. was on the opposite side of the track, intending to cross Lake street, testified that he did not hear the whistle of the locomotive.
There was evidence of employees of the plaintiff in error and others who heard the signals. The engineer said he put on Ms brakes and tried to stop or slow down the train when he saw the automobilist four or five hundred feet away. There is testimony of passengers in the train who felt the brakes applied after the impact. Whether the engineer used the brakes timely and other means at Ms hand, such as the sand, to place upon the tracks, were questions of fact under this proof for the jury. They had the duty to say whether the engineer approached this crossing under the circumstances with that caution and alertness which he was obliged to, having in mind his obligation toward his passengers to exercise a ' high degree of care. The effort to stop the train, the caution which was exercised by those in charge of the locomotive, was given by the employees, who are interested witnesses, and the weight of their testimony was for the jury. The jury may have disbelieved the statement of the engineer as to his use of the brakes, and have found' that he failed to avoid the collision, or failed in sounding [85]*85the whistle. The death of the automobilist forbids the narration of what he heard and saw. The application of the emergency brake in seasonable time after seeing the automobilist might have slowed down the train and have avoided the collision. The train proceeded 1,800 feet or more before the ears went over the embankment. The testimony as to the parts of the automobile being entangled in the locomotive and causing the derailment was given by employees of the railroad company, and it was for the jury to say whether they were honest and truthful in what they said as to this important fact. This issue was properly submitted to the jury.
Error is assigned in permitting the jury to consider as a basis of negligence that the crossing was not protected by gates or flagman. When the railroad company placed another track at .this crossing, it asked permission fx’om the Public Service Commission so to do. There had been a flagman at the crossing prior to this time. No permission was granted to discontinue the flagman, but the Public Service Commission granted the permission and designated the type of signal to. be erected at the crossing. This signal was erected and has heretofore been described. The crossing in question leads from the village of Leroy to and crosses this railroad.' It is one of the main state roads for freight and passenger traffic. At the time of the accident, about 400 automobiles a day passed over it, and very considerable freight was unloaded at the depot and had to cross the same way. There were about 36 trains passing daily. It is not questioned but that a flagman or gates was practical at this crossing. In addition to showing that the gates were practical, there was proof competent to aid the jury in saying what constituted care. It was shown that the flagman or gates were used at similar crossings on this division and would be practical at this point.
The plaintiff in error here may be held by the jury to a higher degree of care than that exercised in complying with the requirements of the Public Service Commission. A duty may exist apart from such requirement. The duty to provide a flagman or gates or adequate warnings and appliances, if the situation at the crossing reasonably required them, depends upon the rule that the railroad company, carrying passengers over crossings frequently traveled, must exercise the highest degree of care to avoid collisions at-such crossings. Surface grade crossings at right angles on a much-traveled highway, may require such care and caution on the part of the railroad company as to make necessary gates or providing a flagman. Grand Trunk Ry. v. Ives, 144 U. S. 408, 12 S. Ct. 679, 36 L. Ed. 485. All human factors are involved and should be considered in the exercise of this high degree of care. While the duty owed to the passenger is not that of an insurer, it requires the cairier to exercise that degree of care, caution, and foresight which a person of great prudence experienced in the business of common cax-rier would exercise in order to secure the safety of its passengers. Pittsburgh Rys. Co. v. Givens, 211 F. 885, 128 C. C. A. 263. This carrier was responsible to the defendant in error for her safety, so far as the exercise of human prudence, caution, and foresight could secure it, and this, of course, must be tested by what a man of average intelligence who appreciates the responsibilities east upon him by the nature of the risk of the business would exercise.
'Changes in population and the vei’y growing use of the automobile, using the highways, are matters which a railroad company must consider, and which a jury may consider, in determining the full extent of the obligation of the coihpany. Memphis Co. v. Bobo, 232 F. 708, 146 C. C. A. 634. The jury had before it the order of the Public Service Commission, the state of traffic at this crossing, the frequency of passing trains, the obstructions to view at the crossing, and the fact that there was no flagman stationed at the crossing and no gates main- ' tained. These factors were proper for them to consider in determining whether public safety and common prudence dictated that, for the care of passengers on its train, the railroad company should not have maintained a flagman or gates at the crossing.
We have examined other errors assigned, and deem further discussion as to them unnecessary. No error appears.
Judgment affirmed.