Atlanta & St. Andrews Bay Ry. Co. v. Church

• Decision Date: 06 May 1954
• Docket Number: 14760.,No. 14759,14759
• Citation: 212 F.2d 688
• Parties: ATLANTA & ST. ANDREWS BAY RY. CO., Inc. v. CHURCH (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

212 F.2d 688 (1954)

ATLANTA & ST. ANDREWS BAY RY. CO., Inc. v. CHURCH (two cases).

Nos. 14759, 14760.

United States Court of Appeals, Fifth Circuit.

May 6, 1954.

Powell, Goldstein, Frazer and Murphy, Atlanta, Ga., Thomas Sale, Panama City, Fla., B. D. Murphy, Atlanta, Ga., R. S. Pierce, Jr., Marianna, Fla., for appellant.

William G. Espy, Dothan, Ala., John H. Carter, Jr., Marianna, Fla., for appellee.

Before HUTCHESON, Chief Judge, and HOLMES and BORAH, Circuit Judges.

HUTCHESON, Chief Judge.

Brought by appellee, plaintiff below, as administratrix of the estate of Lawrence P. Church, deceased, and for herself as his widow, the suits were for death damages resulting from a collision between an automobile and a standing train blocking the highway.

The claims were that the deceased was a passenger in the automobile; that the crossing at which the collision occurred was, by reason of a curve, a dip in the road, and otherwise, dangerous and unprotected by warning lights or other safety devices; and that because of the acts of negligence of the defendant company, as alleged by her, and without negligence on his part or on the part of the driver of the car, the deceased came to his death.

The defendant moved to dismiss on the ground that the pleading showed on its face that the defendant company was not negligent and that the negligence of those in the automobile was the sole proximate cause of the injury; and also moved to strike certain of the allegations of the complaint.

These motions denied, the defendant answered denying the matters alleged by plaintiff, particularly the charges of negligence; and under defenses numbered second to seventh setting up six special defenses.¹

Thereafter the case was tried to a jury on the issues made by the pleadings, and the defendant's motion for a directed verdict made at the conclusion of the evidence denied, the court sent the case to the jury on full instructions, there was a verdict and judgment in one case for $25,000 and in the other for $5,000, and defendant has appealed.

Here it presents numerous specification of error, ten of them general in nature and applicable alike to both appeals, and one, applicable only to the appeal in No. 14760, to the effect that the plaintiff did not prove any damages to entitle her to a judgment in her suit as administratrix, and the verdict in that case is, therefore, without legal basis, because the deceased lived only three days and was unconscious for the greater part of that time.

Of these, one and ten, the most earnestly pressed and vigorously argued, deal not with procedural errors affecting the trial but with the substance of plaintiff's right to recover at all, the claimed error of the court in not granting the defendant's motion for a directed verdict and thereby taking the case from the jury.

The others, except number nine, complain of charges given and refused, and are therefore merely procedural, while nine complains, as procedural error, of a statement made by the court to defendant's counsel in the presence of the jury, "I know I have said some things you don't like". The error claimed here is that the effect of the statement upon the jury was to prejudice them against the defendant's case.

In support of their contention made under specifications one and ten, that the evidence was such that reasonable men could not in the exercise of right reason, find the defendant guilty of negligence, appellant urges upon us that it is established by the undisputed evidence: that the deceased and the driver were on a drinking party; that the car was moving at reckless speed down an open and unobstructed road attended with no hazards; that it ran into a train standing in plain view on a crossing presenting no obstructions to the view; and that these facts required a verdict that the defendant was not negligent, that the negligence of the driver was the sole proximate cause of the injury, and that this negligence was imputable to the plaintiff.

The appellee, as vigorously setting out in her brief the evidence which she asserts is to the contrary of these claims, insists that the case was peculiarly one for a jury, and that the claims of procedural error are without foundation. Summing her argument up, appellee insists that the defendant merely disagrees with the jury. Pointing to evidence of witnesses on which she relies, she urges upon us that there was testimony that, as claimed by her, the road was not straight but curving, that there was a dip in the roadway, that the headlights did not light up the train until the car came out of the dip, and that pavement and standing cars were black and unlighted. She points, too, to the fact that, on a motion of the defendant for a jury view, the jury viewed the crossing, receiving visual impressions of its nature and condition.

Upon the phase of appellant's argument upon which it relies to bring the case within the wild party rule, discussed by the Supreme Court of Florida in Loftin v. Bryan, 63 So.2d 310, that while the negligence of the driver is not ordinarily imputable to a passenger, where driver and passenger were on a wild party together it would be, appellee, insisting that at best for the defendant the issue was for the jury, points to the charge in which the court fully submitted the issue to the jury in substantial accordance with defendant's request.

Quoting the testimony of several witnesses, that the driver was sober, appell...