232 F.2d 631
82 Ohio Law. Abs. 169
Roy R. HUBBARD, Administrator of the Estate of William E.
Hubbard, Appellant,
v.
The PENNSYLVANIA RAILROAD COMPANY, Appellee.
No. 12661.
United States Court of Appeals Sixth Circuit.
April 18, 1956.
J. W. Brown, Ben Gettler and Jerome A. Lischkoff, Cincinnati, Ohio, for appellant.
John W. Hudson and John H. Clippinger, Cincinnati, Ohio, for appellee.
Before SIMONS, Chief Judge, and ALLEN and MILLER, Circuit Judges.
PER CURIAM.
In this action, appellant, as the administrator of the decedent William E. Hubbard, charged the appellee railroad company with the negligent operation of an engine and its tender, causing a collision on U. S. Highway 42 near Hageman, Ohio, between the train and a truck being driven by the decedent. The driver of the truck was killed in the collision. At the close of appellee's case, the District Judge sustained appellee's motion for a directed verdict.
Appellant contends that there was negligence on the part of appellee in backing its engine and tender slowly across the highway so as to block the highway in front of the on-coming truck. But the evidence also conclusively showed that the engine and tender, moving at approximately four or five miles per hour had completely preempted the highway prior to the time of the impact and that the decedent so operated his truck as to crash into the side of the tender while traveling at a high rate of speed under conditions of good visibility and cautionary warnings of the existence and proximity of the crossing, constituting contributory negligence as a matter of law. See Jackson v. Frederick, 152 Ohio St. 423, 89 N.E.2d 645. We are of the opinion that the District Judge was not in error in directing a verdict for the appellee. See Reed v. Erie R. Co., 134 Ohio St. 31, 35, 15 N.E.2d 637; Canterbury v. Pennsylvania R. Co., 158 Ohio St. 68, 76, 107 N.E.2d 115.
The judgment is affirmed.
