Roth v. Swanson

• Decision Date: 03 November 1944
• Docket Number: No. 12876.,12876.
• Citation: 145 F.2d 262
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: ROTH v. SWANSON.

145 F.2d 262 (1944)

ROTH v. SWANSON.

No. 12876.

Circuit Court of Appeals, Eighth Circuit.

November 3, 1944.

COPYRIGHT MATERIAL OMITTED

Alfred E. Rietz, of St. Paul, Minn. (Warren Newcome, of St. Paul, Minn., and William T. Faricy and Nelson J. Wilcox, both of Chicago, Ill., on the brief), for appellant.

John Edmund Burke, of St. Paul, Minn. (Julian E. Morten, of Redwood Falls, Minn., on the brief), for appellee.

Before SANBORN, WOODROUGH, and JOHNSEN, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from a judgment for the plaintiff (appellee), which was entered upon the verdict of a jury in an action brought to recover damages for the death of Colleen Swanson, who, on March 15, 1942, at the age of eight years, was killed when the automobile in which she was riding was struck by the engine of a passenger train of the Chicago and Northwestern Railway Company. The accident occurred in Walnut Grove, Minnesota (a village of about 900 inhabitants), at a point where the main line track of the railway company, which extends east and west through the village, crosses Sixth Street, which runs north and south. The paved portion of the street is 36 feet wide. The train involved in the accident was an eastbound passenger train, consisting of a steam locomotive, a tender, and five steel cars. It was due in Walnut Grove at 9:47 A. M. The train was on time and was not scheduled to stop. The day was cloudy and dark, with mist and fog in the air. Moisture was collecting on windshields and windows of automobiles. The headlight of the engine was on. There was some snow and slush on the roads. The temperature was about forty degrees above zero. The train did not slow down as it entered the village. The automobile which was struck by the train belonged to Gust A. Swanson, a farmer who lived northeast of Walnut Grove. In the automobile were his two children, Dwaine Swanson, his son, the driver, who was nearly eighteen years of age, and Colleen Swanson. Donald Carlson, the young son of a nearby farmer, was with them. The children were on their way to Walnut Grove to attend Sunday school. Shortly before the accident occurred, the automobile, which had come from the east on a highway parallel to and north of the railroad track, turned south on Sixth Street. The automobile was then about 150 feet north of the main track and was moving about eight or ten miles an hour as it approached the track. The automobile was driven or it skidded onto the main track, in front of the train. Apparently no part of the automobile crossed the main track. The engineer, who was on the right or south side of the cab of the engine and was looking ahead, did not see, and could not have seen, the automobile. The fireman, whose seat was on the left or north side of the cab, had left his seat, to attend the fire, when the train was about 300 feet west of the place of the collision. He felt the jar of the collision, looked out of the window of the cab, and saw the automobile sliding along the north side of the train. He notified the engineer, who, with an emergency application of the brakes, brought the train to a stop about 1800 feet east of Sixth Street. The three occupants of the automobile were dead.

Attributing the death of his children to the negligence of the defendant (appellant), Gust A. Swanson, as Special Administrator of the estate of each of them, brought separate actions in the State District Court of Redwood County to recover damages for their deaths. See § 573.02, Minn.Stat.1941. The actions were removed to the federal court by the defendant on the ground of diversity of citizenship. The plaintiff, in his complaint in each action, alleged that the train was operated at an excessive rate of speed; that the engineer failed to give the required warning of its approach by bell or whistle; and that a proper lookout was not kept. Other grounds of negligence were asserted, but passed out of the cases for lack of supporting evidence. The defendant denied the charges of negligence, and asserted that the sole proximate cause of the collision and of the death of the occupants of the automobile was the negligence of Dwaine Swanson, the driver.

The actions were tried together. At the close of the evidence, the defendant moved for a directed verdict in each case upon the ground that no actionable negligence had been shown. The court denied the motions, and submitted the issues to the jury. The jury returned a verdict for the defendant in the action involving the death of Dwaine Swanson, and a verdict for the plaintiff in the instant case, involving the death of Colleen Swanson. Thereafter the defendant moved that the court set aside the latter verdict and grant the defendant judgment notwithstanding the verdict. The defendant also moved for a new trial or for a reduction of the verdict by the amount which, under the Wrongful Death Statute of Minnesota, would go to Gust A. Swanson. The court denied the motions. This appeal followed.

The defendant contends that there is an insufficient evidentiary basis for the verdict and judgment; and that it conclusively appears from the evidence that the defendant was not guilty of any of the charges of actionable negligence, and that the collision was due solely to the negligence of the driver of the automobile.

The applicable substantive law is that of the State of Minnesota. Flagg v. Chicago Great Western Ry. Co., 8 Cir., 143 F.2d 90, 92; Duluth, W. & P. R. Co. v. Zuck, 8 Cir., 119 F.2d 74, 76.

If, under the law of Minnesota, there was evidence which would justify a recovery by the plaintiff upon any of the grounds of negligence alleged, the trial court did not err in denying the motion of the defendant for a directed verdict and the motion for judgment notwithstanding the verdict. Thomson v. Stevens, 8 Cir., 106 F.2d 739, 740.

In considering whether the defendant was entitled to a directed verdict in this case, we must take that view of the evidence which is most favorable to the plaintiff and give to him the benefit of all inferences which reasonably may be drawn from the evidence. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Johnson v. Dierks Lumber & Coal Co., 8 Cir., 130 F.2d 115, 118; Flagg v. Chicago Great Western Ry. Co., 8 Cir., 143 F.2d 90, 92.

"* * * Where uncertainty as to the existence of negligence arises from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury. Richmond & D. R. v. Powers, 149 U.S. 43, 45, 13 S.Ct. 748, 37 L.Ed. 642." Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L.Ed. 720. It is only where the evidence upon any issue is all on one side or so overwhelmingly on one side as to leave no room to doubt what the fact is, that the court should direct a verdict. Gunning v. Cooley, supra, at page 94 of 281 U.S., at page 233 of 50 S.Ct., 74 L.Ed. 720.

In considering the sufficiency of the evidence to sustain a verdict, this Court cannot concern itself with the credibility of the witnesses nor the weight of evidence. Elzig v. Gudwangen, 8 Cir., 91 F.2d 434, 439, 444.

If any of the charges of actionable negligence was supported by substantial evidence, the defendant was not entitled to a directed verdict. "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126.

We have reached the conclusion that the trial court did not err in denying the defendant's motion for a directed verdict and his motion for judgment notwithstanding the verdict.

A statute of the State of Minnesota provides:

"Every engineer driving a locomotive on any railway, who shall fail to ring the bell or sound the whistle upon such locomotive, or cause the same to be rung or sounded, at least eighty rods from any place where such railway crosses a traveled road or street, on the same level, except in cities, or to continue the ringing of such bell or sounding of such whistle at intervals until such locomotive and the train thereto attached shall have completely crossed such road or street, shall be guilty of a misdemeanor." Section 616.34, Minn.Stat.1941.

A violation of this statute is negligence per se. Judson v. Great Northern Ry. Co., 63 Minn. 248, 254, 65 N.W. 447, 449.

While it conclusively appears from the evidence in this case that the engineer sounded the whistle at some point west of the Sixth Street crossing, there is uncertainty as to the point where he ceased sounding it. The engineer testified that he sounded the "station whistle" when the train was about three-quarters of a mile west of the station in Walnut Grove. The station is approximately 300 feet west of the place where the collision occurred. The engineer also testified that he sounded the crossing whistle when he was about a quarter of a mile west of the Eighth Street crossing (this crossing is two blocks west of the Sixth Street crossing), and that he continued to sound the whistle at intervals until the engine reached the west end of the station, which is approximately 350 feet west of the place where the collision occurred. The engineer's testimony as to the sounding of the whistle was corroborated by the fireman and other trainmen. The trainmen were interested witnesses, and their credibility and the weight of their evidence was for the jury. There was other evidence from which an inference might be drawn that the whistle ceased to sound at a point west of the Eighth Street crossing and so far away from the Sixth Street crossing as not to furnish an adequate warning to travelers approaching the tracks on that street. The engineer and the fireman both testified that the bell on the locomotive was kept ringing automatically while the train was...