
    No. 798
    MURPHY et al v. PENNA. RD. CO.
    U. S. Appeals, 6th Circuit
    Nos. 4030, 4031.
    Decided Oct. 17, 1924
    991. RAILROADS—-Degree of danger existing as to some highway travellers at crossing does not make it so dangerous as to justify a jury in finding a duty to have a gate and watchman when such precaution has not been taken by state authorities.
    Attorneys—John Ruffalo and Craver, Diser, Huey & Starrs, Youngstown, for Murphy and Clouthier; Squire, Sanders & Dempsey, Cleveland, and Harrington, Deford, Huxley & Smith, Youngstown, for Company.
   PER CURIAM.

Orlando Murphy and others and Albert Clouthier brought their actions at law in the District Court, against the Pennsylvania Railroad Co. Judgment there was for the company.

Error was prosecuted and the only complaint was that the trial judge, when his attention was called thereto after the general charge, failed to instruct the jury that actionable negligence might be predicated upon the lack of gate or watchman at the crossing in question, even in the absence of statutory requirement therefor, because the crossing was especially dangerous and more than ordinarily hazardous.

The Circuit Court of Appeals in affirming the judgment of the trial court held:

1. There was no substantial evidence in the record to justify the submission of this theory of negligence.

2. There was nothing to indicate any greater degree of use than is ordinary upon a typical country road which was not shown to be a trunk or main line highway, but which carried tfavel between two small towns a few miles apart because the regular road was temporarily under repairs and this was used as a detour.

3. The degree of danger, existing to some of the hig'hway travellers cannot of itself be said to make the crossing of that excessively dangerous character which alone would justify a jury in finding a duty to have a gate or watchman when that precaution has not been ordered by state authorities who prescribe such safeguards when they think the necessity exists.

Judgment affirmed.  