Nashville, C. & St. L. Ry. Co. v. York

• Decision Date: 22 April 1942
• Docket Number: No. 8980.,8980.
• Citation: 127 F.2d 606
• Parties: NASHVILLE, C. & ST. L. RY. CO. v. YORK.
• Court: U.S. Court of Appeals — Sixth Circuit

127 F.2d 606 (1942)

NASHVILLE, C. & ST. L. RY. CO. v. YORK.

No. 8980.

Circuit Court of Appeals, Sixth Circuit.

April 22, 1942.

W. F. Murrah, of Memphis, Tenn., and Walton Whitwell, of Nashville, Tenn. (Wm. A. Miller, Edwin F. Hunt, and Wm. H. Swiggart, all of Nashville, Tenn., on the brief), for appellant.

Roberts P. Elam, of St. Louis, Mo. (Mark D. Eagleton, of St. Louis, Mo., and Joseph H. Norville, of Memphis, Tenn., on the brief), for appellee.

Before HICKS, SIMONS, and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

The railway company has appealed from a judgment in the district court on the verdict of a jury awarding appellee $25,000 damages, for personal injuries received while serving as brakeman in the employ of appellant.

The injured man and the conductor were seated in the cupola of a caboose, attached to the rear end of a freight train consisting of an engine and thirty-seven cars. The train was proceeding southwardly from Bruceton, Tennessee, to Nashville, Tennessee. The conductor was seated on the east and the appellee on the west side of the cupola, and each was keeping a lookout ahead.

A signal post and sign on the west side of the track, at a point about a half mile north of a left curve some two miles south of McEwen, directed reduction of speed to twenty miles an hour, for the reason that the roadbed and track were being repaired by a section crew in the vicinity of the curve. The reduced speed signal was observed by the application of brakes by the engineer, and the freight train entered the curve at a speed rate of around twenty miles per hour.

Suddenly, the conductor swung for a grab iron and shouted. Through the front window of the cupola, appellee observed that some of the cars ahead were off the track and that the car next to the caboose was careening. He seized two grab irons; but was hurled from the cupola with such force as to strain his back and strike his right hip against the corner of a table below. The caboose had been derailed and thrown against an embankment.

Section men helped appellee out of the caboose. After resting on the ground for a few minutes and recuperating from the shock, appellee, who did not consider himself seriously injured at the time, walked a half to three-quarters of a mile to the rear of the train to perform his flagging duties. Thence, he went into McEwen on a motor car, returned to the train and with other members of the crew rode into Nashville, some fifty-five miles away. The derailment occurred around eleven o'clock A. M., and the engine and the front 27 cars which had not been derailed arrived in the Tennessee capital city around 4:30 o'clock in the afternoon.

Appellee brought action against the carrier under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59; and, resting upon the applicability of the doctrine, res ipsa loquitur, introduced at the trial only his own testimony and that of two doctors. A motion by the railway company for a directed verdict was overruled.

Whereupon, appellant introduced as witnesses the engineer and the fireman who were on the engine of the freight train at the time of the derailment; the section foreman in charge of the repair work near the point of derailment; the track supervisor of the railroad section where the derailment occurred; the foreman of an adjacent section, who, shortly after the accident, inspected the track at the point of and north of the derailment; the engineer and the fireman of a train which had passed over the derailment point without trouble shortly before the accident; the general foreman of the car department in charge of maintenance of equipment; the assistant engineer on maintenance of way; and four doctors.

It seems unnecessary to detail the evidence. Suffice it to say that the inspection of the derailed cars and caboose after the accident disclosed no defects which might have caused or contributed to the derailment. The railroad track, or roadbed, north of the derailment point was by several witnesses said to have been in good condition and alignment; and, before the accident, the repair work south of the point of derailment was being done by experienced, competent men, in accordance with customary methods.

The fireman of the partly derailed freight train, however, admitted on cross-examination the correctness of a statement made by him before the trial that, as the engine "got into the curve," he had observed the section men working on the tracks; that "the tracks were stripped from the north end of the curve to about the center of the curve;" and that "there was no ballast holding the ties or rails down in that area," except "the weight of the tie and rails." On the witness stand, he stated that "the end portion of the ties was stripped," and that the ballast in the stripped or open places was missing. He testified, further, that the stripped portion of the track was between five and six rail lengths, although the engineer of the train had estimated the unballasted portion of the track as between three or four rail lengths of thirty feet each.

When asked whether the place where he saw the ballast stripped was from the center of the curve back north toward the caboose, the fireman replied that it was north of the caboose. Moreover, he located the place where the first of the ten cars started to turn over as on the curve, although he could not say whether in the center, or not.

The section foreman who was in charge of the crew working near the point of derailment admitted that, after the accident, he was disciplined by the railroad company for violating its rules, in that he had failed to go back thirty rails from where he was working to ascertain, by inspection, whether the joints were bolted tight. While he was corroborated by two other witnesses that, after the accident, the track was in good condition at the point of derailment, he was contradicted as to this by the testimony of the railroad company's assistant engineer of maintenance of way, who testified that, after the accident, the rails, both north and south of the point of derailment marked by the section foreman, were out of gauge.

After all the evidence in the case had been received, the motion of appellant for a directed verdict was renewed, and overruled. On this appeal, the action of the district court, in denying the motion, is assigned as error.

(1) Prior to Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, actions under the Employers' Liability Act were undoubtedly governed and controlled by rules of law as announced in the federal courts. Chesapeake & Ohio Railroad Co. v. Kuhn, 284 U.S. 44, 47, 52 S.Ct. 45, 76 L.Ed. 157; Western & Atlantic Railroad Co. v. Hughes, 278 U.S. 496, 498, 49 S.Ct. 231, 73 L.Ed. 473; Chicago, Milwaukee & St. Paul R. R. Co. v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 70 L.Ed. 1041.

No pronouncement in the Tompkins case, or in subsequent decisions of the Supreme Court, indicates that federal decisions are not still controlling in such cases. We look, therefore, to the federal courts for guidance upon questions of law presented by this appeal.

(2) Appellant asserts that the res ipsa loquitur rule has no applicability to this case; and that there is no substantial evidence to support the verdict of the jury and the judgment entered thereon.

In San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98, 99, 32 S.Ct. 399, 401, 56 L.Ed. 680, the Supreme Court said: "When a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care."

The highest court has made it clear that while the res ipsa loquitur doctrine does not compel an inference of negligence from the facts of an occurrence, it does warrant such inference; that the facts of an occurrence furnish circumstantial evidence of negligence where direct evidence of the same may be lacking; that the evidence must be weighed, but not necessarily accepted as sufficient; that explanation or rebuttal is called for, though not necessarily required; that a case for the jury is made, though the jury verdict is not forestalled; that the defendant's general issue is not converted into an affirmative defense; and that "when all the evidence is in, the question for the jury is, whether the preponderance is with the plaintiff." Sweeney v. Erving, 228 U.S. 233, 240, 33 S.Ct. 416, 418, 57 L.Ed. 815.

This court has applied the doctrine in conformity with these expressions of the Supreme Court. Rayburn v. Pennsylvania R. Co., 6 Cir., 76 F.2d 505, 506.

In Lowery v. Hocking Valley Ry. Co., 6 Cir., 60 F.2d 78, a judgment in favor of a railroad carrier, in an action brought by a trainman under the Federal Employers' Liability Act, was reversed for the failure of the district court to instruct the jury properly that an inference of negligence was permissible against the railroad from the fact of derailment. The district judge had charged the jury that, where a derailment occurs, an inference of negligence arises in the absence of any evidence or any explanation of the derailment; but, by reiterated statements, the trial judge emphasized that the burden rested upon the plaintiff to prove that the accident was occasioned by the negligence of the railroad company in the maintenance of its roadbed and equipment. The jury were instructed that, if it was found that the derailment was probably caused by a piece of plank which the train had torn from a crossing, they were to consider whether the evidence disclosed a lack of due care upon the part of the railroad company in respect to the crossing, or in respect to its roadbed or equipment.

The jurist, writing for this court, on appeal pointed...