## Facts

- Stewart, an employee of East Ohio Gas Company, rode as a passenger in a company truck approaching a heavily traveled Erie Railroad crossing at East 123rd Street in Cleveland, Ohio.
- Erie had long maintained a crossing watchman at this location, though no statute or ordinance required one.
- At the time of the collision, the watchman was not effectively warning traffic (either inside or just outside a shanty) and gave no timely warning.
- An Erie train struck the truck, seriously injuring Stewart.
- Stewart knew of the longstanding practice of having a watchman at the crossing and treated the watchman’s presence and conduct as an indication of whether it was safe to proceed.
- Stewart sued Erie for negligence, alleging that Erie’s failure to provide effective warning through its customary watchman practice created an unreasonable risk and proximately caused his injuries.

## Issues

1. Whether Stewart, as a passenger, was contributorily negligent as a matter of law, requiring judgment for Erie rather than submission to the jury.
2. Whether the trial court erred by instructing that the absence of a watchman—where one had been maintained for a long time to Stewart’s knowledge—constituted negligence as a matter of law.

## Decision

- The Sixth Circuit affirmed the judgment for Stewart.
- Stewart’s contributory negligence was not established as a matter of law; it was properly left to the jury.
- The court upheld the instruction that, given Erie’s long and known practice of maintaining a watchman at a heavily traveled crossing, the watchman’s unexplained absence or ineffective warning could be treated as negligence as a matter of law.
- A concurrence agreed with affirmance but would not condition liability on Stewart’s personal knowledge or reliance.

## Legal Principles

- Under Ohio law, a driver’s negligence is not automatically imputed to a passenger; a passenger’s contributory negligence ordinarily presents a jury question absent undisputed facts showing failure to exercise reasonable care.
- Where a railroad has long and voluntarily provided safety protection at a crossing (such as a watchman), travelers may treat the lack of expected protection as a qualified assurance of safety when assessing reasonable care.
- A voluntary safety practice, maintained over time at a dangerous location, can create a duty to exercise reasonable care in continuing and performing that practice; an unexplained lapse or negligent performance may constitute actionable negligence when it foreseeably increases risk.
- The majority treated the plaintiff’s knowledge of and reliance on the established practice as a basis for the duty and for assessing the effect of the practice’s withdrawal.

## Conclusion

The court held that Erie’s longstanding voluntary practice of providing a crossing watchman could create a duty to continue providing reasonable warning, and that an unexplained failure to do so at a heavily traveled crossing could support liability, while Stewart’s contributory negligence as a passenger remained a question for the jury.


Erie R.R. Co. v. Stewart, 40 F.2d 855 (6th Cir. 1930)