opinion: DELAWARE & H. R. CORPORATION v. FELTER (SPRINGFIELD FIRE & MARINE INS. CO., Intervener).
  No. 6527.
  Circuit Court of Appeals, Third Circuit.
  Aug. 25, 1938.
  Rehearing Denied Sept. 23, 1938.
  Paul Bedford, of Wilkes-Barre, Pa. (Joseph Rosch, of Albany, N. Y., and Thomas L. Ennis, of New York City, of counsel) , for appellant.
  Ralph Mastriani and Raymond Bialkowski, both of Scranton, Pa., for appellees.
  Before BUFFINGTON and DAVIS, Circuit Judges, and DICKINSON, District Judge.
  DICKINSON, District Judge.
  The complaint voiced in the action brought in the Court below, is the loss of the property of the plaintiff below by fire due to the averred negligence of a railroad company in blocking a public highway, thereby preventing a Fire Hose Company from reaching the scene of the fire in time to extinguish the flames before any damage was done.
  It is going outside the record but it may be assumed that the owner of the property was insured and that the recovery is for the benefit of the underwriter, so that the questions of law raised may be considered on their legal merits without danger of justice being jostled from its seat by any feelings of sympathy.
  The action is one of negligence. There are only two questions raised. The jury resolved both in favor of the plaintiff below. The questions were and are:
  1. Was there any evidence of the negligence of the defendant below to support the verdict?
  2. Did the negligence, if any, contribute to the damage done?
  The Question of Negligence.
  The defendant in fact did obstruct the crossing of the highway by its standing train of cars. Grade crossings of highways by railroads are not unlawful under the laws of Pennsylvania, although there is an avowed policy of the law to abolish them when this is practicable. Any movement of- a train across a highway does obstruct' the crossing for the time being. Such obstructions are unavoidable and hence excusable.
  Much time and labor has been devoted to the discussion pro and con of the “reasonableness” of the obstruction here. All this goes to the conclusion to be reached under all the evidence. The cited cases of Kirstein v. Philadelphia & Reading R. Co., 257 Pa. 192, 101 A. 338, 5 A.L.R. 1646, and American Sheet & Tin Plate Co. v. Pittsburgh & Lake Erie R. Co., 3 Cir., 143 F. 789, 12 L.R.A.,N.S., 382, 6 Ann.Cas. 626, treat of this question.
  The question presented on this appeal is a much narrower question. It is whether there is evidence of negligence to submit to the jury. The Pennsylvania Act of June 9th, 1911, 67 P.S.Pa. § 452, declares it to be unlawful for a railroad company to obstruct a crossing with their locomotives or cars. This Act was passed since the cases cited were decided. There would, because of this, be evidence in any case of blocking which would carry it to the jury. The trial Judge in this case so ruled, and in this we think he was right.
  Did the Negligence Contribute to the Damage ?
  A distinction must be recognized between negligence and what may be termed actionable negligence. To make negligence actionable it must not only exist but it must have contributed in some degree to the damage done. The highway in this case was blocked and the house of the plaintiff below was burned. Assuming that the blocking was a negligent obstruction did the holding back of the fire apparatus contribute to the damaging progress of the fire? This became an important question in the case.
  The defendant below by its Sixth point asked the Court to instruct the jury that unless the delay of the fire apparatus contributed to the loss by fire of the plaintiff’s building, the verdict should be for the defendant. The trial Judge so instructed the jury by leaving to it the determination of this question. At the conclusion of his charge he referred to the fact that all the points of charge which he had been requested to make he had covered in his general charge and counsel was invited to withdraw the points. This, however, as was his right, counsel declined to do, whereupon the record shows the following ruling: “The Court: Refused. All' points are refused which are not affirmed.” Inasmuch as the Sixth point had been affirmed in the general order, we think this ruling was the equivalent of an affirmation. The fact of the, obstruction to the crossing having contributed to the damage sustained' by the plaintiff was certainly left to the jury. The Ninth Assignment of Error which refers to the Sixth point can in consequence not be sustained'. The other Assignments of Error do. not call for special treatment.
  The. case for the appellant is really based upon its claim of right to a directed verdict, and this in turn depends upon the two questions just discussed. (1) Whether there was evidence to go to the jury to find negligence, and (2) if so found, whether that negligence contributed in any degree to the damage suffered by the plaintiff.
  The Assignments of Error are all overruled, and the judgment appealed from is affirmed, with costs.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.