Green v. Baltimore & Ohio Railroad Company

• Decision Date: 30 October 1964
• Docket Number: No. 15328,15329.,15328
• Citation: 337 F.2d 673
• Parties: Reb GREEN, Admr. of the Estate of Wanetta Green, Deceased, Plaintiff-Appellant, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellee. Edna SHEPHERD, Admx. of the Estate of Richard Shepherd, Deceased, Plaintiff-Appellant, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

337 F.2d 673 (1964)

Reb GREEN, Admr. of the Estate of Wanetta Green, Deceased, Plaintiff-Appellant, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellee.

Edna SHEPHERD, Admx. of the Estate of Richard Shepherd, Deceased, Plaintiff-Appellant, v. BALTIMORE & OHIO RAILROAD COMPANY, Defendant-Appellee.

Nos. 15328, 15329.

United States Court of Appeals Sixth Circuit.

October 30, 1964.

William C. Wines, Chicago, Ill., George H. Fell, Toledo, Ohio, Errett O. Graham, John A. McElligott, Chicago, Ill., on brief, for appellants.

John W. Hackett, Toledo, Ohio, Shumaker, Loop & Kendrick, Robert B. Gosline, Toledo, Ohio, on brief, for appellee.

Before MILLER and PHILLIPS, Circuit Judges, and McALLISTER, Senior Circuit Judge.

SHACKELFORD MILLER, Jr., Circuit Judge.

Reb Green, as administrator of the Estate of his deceased daughter, Wanetta Green, and Edna Shepherd, as administratrix of the Estate of her deceased husband, Richard Shepherd, brought these separate actions in the District Court, which were later consolidated, to recover under the law of Ohio for the death of the respective decedents resulting from a collision between an automobile being driven by the decedent Shepherd, in which the decedent Wanetta Green was a passenger, and a locomotive of the appellee, Baltimore & Ohio Railroad Company, at a grade crossing in Ohio. At a trial in the District Court the District Judge directed a verdict for the defendant.

The transcript of the evidence shows that the plaintiffs offered the evidence of a witness, George Wright, who, the plaintiffs stated, would testify, if allowed to do so, that he was in the vicinity of the grade crossing at the time of the accident, that he heard the crash but that he did not hear a bell, whistle or horn just before the crash. The District Judge sustained an objection to this testimony for the reason that the plaintiffs had not relied on this ground in their complaints. He also denied plaintiffs' motion to amend the complaint so as to include as a ground for liability the failure of the defendant to give such signals. In the absence of any other evidence showing negligence on the part of the defendant, the District Judge directed verdicts for the defendant.

On appeal, this Court was of the opinion that the District Judge should have permitted the plaintiffs to amend their complaints. This Court was also of the opinion that the proffered testimony would have made a case for the jury. The opinion states: "In this case, appellants' witness testified that he heard the collision, and the proffered testimony was he would testify that no bell, whistle, or horn was sounded immediately prior to the accident. We are of the view that the fact that the witness heard the crash, and that his proffered testimony was that he did not hear a bell, whistle, or horn, just before the crash, presented a jury question as to whether such signals were given by the appellee, and does not partake of the character of negative evidence that was held insufficient to present such question in Clark v. Baltimore & O. R. Co. 196 F.2d 206, C.A.6th, cert. denied, 344 U.S. 830, 73 S.Ct. 36, 97 L.Ed. 646, supra. * * *" The judgments entered on the directed verdicts in favor of the defendant were reversed and the cases were remanded for a new trial. Green v. Baltimore & Ohio Railroad Company, 299 F.2d 837, C.A.6th.

At the second trial, which is now being reviewed on this appeal, George Wright was again offered as a witness and, in view of the ruling on the first appeal, was allowed to testify.

However, the District Judge again directed verdicts in favor of the defendant. From the judgments entered on such directed verdicts the present appeals are taken.

In the first trial of this case it was strongly contended by the appellee that so-called negative testimony of the kind offered by the witness Wright was not sufficient to take the case to the jury on the issue of negligence, when such testimony was met by positive evidence to the contrary, such as uncontradicted testimony by those operating the engine, as in the present case, that the bell was ringing and the whistle was blowing. Clark v. Baltimore & O. R. Co., supra, 196 F.2d 206, C.A.6th, cert. denied, 344 U.S. 830, 73 S.Ct. 36, 97 L.Ed. 646. In passing on the appeal from the judgment in that trial we rejected that contention. See also: Hood v. New York, Chicago & St. Louis Rd. Co., 166 Ohio St. 529, 144 N.E.2d 104; Ernst v. Baltimore & Ohio Railroad Co., 316 F.2d 856, 857, C.A.6th, which were not cited in the opinion in that case. Such ruling constitutes the "law of the case," which is to be applied in the second trial. General American Life Ins. Co. v. Anderson, 156 F.2d 615, 618-619, C.A.6th; Henderson v. United States, 218 F.2d 14, 16, 50 A.L.R.2d 754, C.A.6th, cert. denied, 349 U.S. 920, 75 S.Ct. 660, 99 L.Ed. 1253, rehearing denied, 349 U.S. 969, 75 S.Ct. 879, 99 L.Ed. 1290; Hildreth v. Union News Company, 315 F.2d 548, 550, C.A.6th, cert. denied, 375 U.S. 826, 84 S.Ct. 69, 11 L.Ed.2d 59.

Appellee recognizes this rule, but contends that the rule is not applicable when the evidence in the second trial is not substantially the same as that offered or received in the first trial, which it contends was the situation in the second trial. Carpenter v. Durell, 90 F.2d 57, 58-59, C.A.6th, cert. denied, 302 U.S. 721, 58 S.Ct. 42, 82 L.Ed. 557.

In support of this contention, appellee refers to testimony of the witness Wright tending to show that he was not at the place where he claims to have been and where he claims to have heard the crash, until after the accident; that if he was at the place where he claims to have been, he could not have heard a crash between the engine and the automobile; and that it could be that the so-called "crash" that he said he heard was not the "crash" of the collision at all, but was a loud noise from some other source. It is contended that this development of the facts by the actual testimony of Wright was materially different from what was before this Court through the proffered testimony in the first trial, thus making our ruling in the first trial inapplicable to the factual situation developed by testimony in the second trial.

In substance, Wright's testimony on direct examination in the second trial was that between 12:00 midnight and 12:30 he was coming home from work and came to the intersection of Route 598 where it crosses Route 194; that the weather was pretty bad and he stopped at the stop sign to fix the windshield wiper on his car; that his window was rolled down; that while he was parked there with the window rolled down "I just heard a loud crash, but I didn't know what happened"; that before the crash he did not hear any sound or signal of a horn, bell or whistle of the train; and that he was listening at the time of the crash. This was substantially the same testimony that the plaintiffs proffered...