Southern Ry. Co. v. Smith

• Decision Date: 29 March 1898
• Docket Number: 622.
• Citation: 86 F. 292
• Parties: SOUTHERN RY. CO. v. SMITH.
• Court: U.S. Court of Appeals — Fifth Circuit

86 F. 292

SOUTHERN RY. CO. v. SMITH.

No. 622.

United States Court of Appeals, Fifth Circuit.

March 29, 1898

The following statement of the case, made by plaintiff in error is full, and covers all of the important allegations in the pleadings and testimony:

'On April 14, 1896, Perry C. Smith filed his suit against the Southern Railway Company in the United States circuit court for the Southern district of Georgia, Western division alleging that on September 16, 1895, plaintiff was in Eastman, Ga., and intended to take the 2:30 p.m south-bound train; that he left the business part of the town in ample time to board his train; which was then standing on the side track on the east side of the railroad; that he had to approach the railroad at a public street and crossing, and walk up the railroad until he reached his train, this being the way provided by defendant for passengers to board its trains; that when he reached the crossing, out of abundant caution, he looked down the track, but could see no train approaching; that he had no reason to expect any train, because the north-bound had been meeting the south-bound train several miles below Eastman; that he then walked up the railroad track, as was necessary, to board the train; that, while walking within two or three feet of the main line, the north-bound train approached from his rear, at a high rate of speed, and the engine struck him in the back; that it was the company's duty to provide a safe place of ingress and egress for passengers to and from trains; that plaintiff was rightfully at the place of injury, having a ticket, and was in the way provided by the defendant company; that the train approached without blowing the station signal, and at a speed of twenty miles per hour; that the standing train was ringing its bell preparatory to starting, so that, if the approaching train was ringing its bell preparatory to starting, so that, if the approaching train was ringing its bell, plaintiff could not hear it on account of the confusion made by the noise of the standing train; that the approaching train gave no signal, as far as the plaintiff could hear; that he was on the track in the daytime, in plain open view of those on the approaching engine, and they gave him no signal by blowing the whistle or calling out to him; that it was the company's duty to run the train at such speed as not to endanger life, and so as to stop at the crossing where plaintiff was injured; that, in violation of law and duty, the train was running twenty miles per hour when the crossing was reached, and when plaintiff was struck; that the accident occurred in the corporate limits, near the center of the town; that the company was negligent in running at such speed in violation of an ordinance. Plaintiff sets out in detail the alleged nature and extent of his injuries, alleges they were permanent, and disabled him from pursuing his vocation as traveling salesman, and from procuring other profitable employment, says he was without fault, and sues for $5,000 damages, including punitive damages. The defendant company filed a demurrer which is in the record. Defendant also filed a plea denying all the material allegations, and especially denying every allegation of fault or negligence on the part of the defendant company or its employes, or freedom from fault on the part of the plaintiff, and denying any liability to plaintiff, and averring that the accident and injury to him, whatever it might be, was due entirely to his own fault, negligence, and carelessness; and it could easily have been avoided by him by the exercise of ordinary care and prudence on his part. The trial began May 10th, and was concluded May 13, 1897. The testimony at the trial showed that plaintiff below was in the town of Eastman, Ga., on the date specified, and was making his way to a train on a siding near the depot, for the purpose of boarding the same; that he had a mileage ticket in his pocket. In order to reach it, he was compelled to cross the main line, and in doing so was hit by the bumper on the front of the engine, and injured. It was further established that the train that caused the accident could be seen for from two hundred to five hundred yards before it reached the station, and it ran not more than three car lengths after it hit the plaintiff below. It is the uncontradicted testimony of all parties that the plaintiff was walking beside the track, and within a few feet of it, before turning to cross just in front of the incoming train. It was established that the whistle of the north-bound train was blown once as it came out of the cut about a quarter of a mile south of the depot, and some more short blasts were sounded before it reached the lower south switch, all of which could have been distinctly heard at the depot. The bell began to ring before the train reached the lower south switch, and rang continuously until the train finally stopped opposite the depot. The train stopped at the regular place opposite the depot. As Smith started to step onto the track, the fireman called out to him to 'Look out.' but he paid no heed to the warning, and was injured. Smith testified that when he reached the south side of Fourth avenue, near the western side track, he turned, and looked south, and saw no train coming, and that when he got between the side track and the main line, and had walked a few steps north, he again looked south, and saw no train coming. All the witnesses for plaintiff and defendant saw the train coming, and some of them as far as a quarter of a mile away, and all but one or two heard its bell ringing, and several heard the fireman call out to Smith as he started to step on the main line in front of the approaching train. No one testifies as to seeing Smith look for the train. There is no conflict in the evidence that there was nothing to prevent Smith from seeing the train. At the close of all the evidence, defendant's counsel moved the court to direct and instruct the jury to render a verdict in favor of the defendant, because the evidence demanded such a verdict, and no other verdict could properly be rendered under the evidence and under the law applicable in said case. The court, however, refused the motion to direct a verdict, and also refused to give in charge to the jury certain requests made by defendant's counsel; and, after receiving the instructions of the court, the jury retired to their room, and entered upon their deliberations, and a verdict was returned in favor of plaintiff for $2,790.00, and a judgment was entered accordingly.'

John F. Delacy and James Bishop, Jr., for plaintiff in error.

A. O. Bacon, A. L. Miller, and Wm. Brunson, for defendant in error.

Before PARDEE and McCORMICK, Circuit Judges, and SWAYNE, District Judge.

SWAYNE District Judge.

The case comes to this court upon writ of error containing 21 separate specifications founded upon 15 special requests by defendant to charge, which the court refused, and upon exceptions to the charge as given by the court. The first error we would notice upon the record is that in which the court treated the plaintiff below as a passenger, and charged the jury that the defendant below owed him extraordinary care and diligence as such passenger. We think plaintiff below was not a passenger in the contemplation of law. He was not upon the train, had not been to the depot recently, nor purchased a ticket, and did nothing to notify any of the officers or agents of the defendant company that he was even a prospective passenger. The company did not owe him extraordinary care or diligence as such passenger, but only ordinary care as to the general public.

We think the court erred in charging the jury as recited in the eighteenth specification of error, in which it assumed to be a fact that the train was running at 8 or 10 miles per hour, when it injured the plaintiff below, and further suggested to the jury that it usually ran into the station among the passengers at that rate of speed.

We think the requests contained in twelfth and thirteenth assignments of error, that there was no allegation or proof to justify or uphold a verdict for punitive damages, were erroneously refused, and that this was error.

Another question arising out of many of the assignments or error, and embodied in many of the special requests to charge by defendant below, is the question whether the injury to plaintiff below was caused by his negligence; that if, by the exercise of ordinary care, the plaintiff could have avoided the consequence caused by defendant's negligence, if defendant was negligent, then he could not recover. This request to charge the law long established both by the statutes and decisions of the state of Georgia as well as the decisions of courts generally was repeatedly requested by the defendant below, and was as repeatedly refused by the court. This doctrine is so well established, and is of such long standing, and upon which the courts of the country are so unanimous, that we should not stop to make any citations to sustain it if it was not so pointedly questioned by the record. First, section 3830(2972) of the Code of Georgia reads as follows:

'If the plaintiff by ordinary care could have avoided the

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