Atchison, T. & SF Ry. Co. v. Ballard

• Decision Date: 07 February 1940
• Docket Number: No. 9161.,9161.
• Citation: 108 F.2d 768
• Parties: ATCHISON, T. & S. F. RY. CO. v. BALLARD.
• Court: U.S. Court of Appeals — Fifth Circuit

108 F.2d 768 (1940)

ATCHISON, T. & S. F. RY. CO. v. BALLARD.

No. 9161.

Circuit Court of Appeals, Fifth Circuit.

January 9, 1940.

Rehearing Denied February 7, 1940.

Thornton Hardie, of El Paso, Tex., for appellant.

Walker Saulsbury and Byron Skelton, both of Temple, Tex., for appellee.

Before HUTCHESON, HOLMES, and McCORD, Circuit Judges.

HUTCHESON, Circuit Judge.

When this case was here before,¹ it was on an appeal from a judgment on a verdict directed against appellant then, appellee now, on the ground that the primary cause of the "collision" was the negligence of plaintiff, in not operating his train at restricted speed, within the yard limits of the station at Hagerman.

On this appeal, the railway company, assigning other grounds too, still insists that the verdict should have been directed for it on that ground. We thought then, that the case was not one for a direction. We thought then, that since, under the provisions of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., contributory negligence on the part of an employee, is not a bar to, but only diminishes recovery, the case was one for a jury verdict. Fully recognizing the laboring oar they pull, in endeavoring to have us reverse our former judgment, appellant yet vigorously maintains that; the case is one of an employee causing his own injury through direct violation of a positive, specific rule; and that within the authorities, his negligence must be considered the sole proximate cause of his injury, even though, the fireman was negligent in failing to keep a proper lookout. Unadilla Valley Railway Company v. Caldine, 278 U.S. 139, 49 S.Ct. 91, 73 L.Ed. 224; St. Louis Southwestern Railway Co. v. Simpson, 286 U.S. 346, 52 S.Ct. 520, 76 L.Ed. 1152; Van Derveer v. Delaware, L. & W. R. Co., 2 Cir., 84 F.2d 979; Paster v. Pennsylvania R. R., 2 Cir., 43 F.2d 908; Hylton v. Southern Railway Co., 6 Cir., 87 F.2d 393; Great Northern Railway Co. v. Wiles, Administrator, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732; Miller v. Central R. Co. of New Jersey, 2 Cir., 58 F.2d 635; I.-G. N. R. R. Co. v. Lowry, 132 Tex. 272, 121 S.W.2d 585; Pere Marquette R. Co. v. Haskins, 6 Cir., 62 F.2d 806.

We do not think so. Of the opinion that the case was one for a jury verdict upon whether there was negligence of the fireman, which concurred with that of the plaintiff, to cause the collision, we overrule appellant's assignment that a verdict should have been directed for it. Cf. Atlantic Coast Line R. Co. v. Stringfellow, 292 U.S. 625, 54 S.Ct. 630, 78 L. Ed. 1480.

The case stands differently, however, on appellant's assignments, that there was error, in the giving of objected to portions of the main charge, and in the refusal of defendant's requested charges. Separately assigned, as to particular charges asked and refused, and as to portions of the main charge given over appellant's objection, taken together, they present three main grounds of error. The first point presented in requested charges and in objections to the main charge, is, that appellant was entitled to its requested charge that plaintiff in violation of company rules 93 and D-153,² had, as engineer failed to have his train move while in the yard limits of Hagerman, at restricted speed, that is, "Proceed, prepared to stop short of train, obstruction or anything that may require the speed of a train to be reduced." The second point is, that under these rules, the members of the crew of Extra 1146-East, into the caboose of which plaintiff ran his train, were under no obligation to protect against it and therefore, could not be negligent with respect to plaintiff; and it was error to submit to the jury, whether or not, they were. A subordinate point under this main point is, that if the issue of the negligence of the crew of Extra 1146-East should have been submitted at all, it was not correctly submitted, in that the charge erroneously told the jury that there is a conflict between Rule 93 and Rule 99, when properly construed there is no conflict.

The third point is the more general one, that the Judge throughout his charge, failed to instruct the jury, as he should have done, that the violation by plaintiff of specific rules, such as Rules 93 and D-153, would of itself, constitute negligence, and further the charge did not properly advise the jury as to the weight to be attached to the rules, that is, as to their force and effect.

We think appellant is right. It is true, that a violation of company rules for the conduct of its employees, general in terms, will not ordinarily constitute negligence as matter of law. Nor will observance of such rules, as matter of law, necessarily be due care, but it will be for the jury to say, considering the rules along with the evidence as a whole, whether there was negligence. Gildner v. B. & O. R. Co., 2 Cir., 90 F.2d 635; Rocco v. Lehigh Valley R. R. Co., 288 U.S. 275, 53 S.Ct. 343, 77 L.Ed. 743; Miller v. Central R. Co. of New Jersey, 2 Cir., 58 F.2d 635; Hall v. Chicago B. & N. R. R. 46 Minn. 439, 49 N.W. 239. A violation of specific rules though, will constitute negligence just as their observance by others, will, in relation to the violator, constitute, due care. Miller v. Central R. Co. of New Jersey, and other cases, supra. Thus, as applied to the question at issue, if the rule for keeping the train at restricted speed had stopped there, without more, it would have left the matter greatly one of judgment and it would be a question of fact under the opinion of witnesses qualified to give opinions, whether in the particular case, there was negligence in failing to observe it. But, where as here, there is a precise definition of restricted speed, the question of what the rule means and requires, is a question of law for the court, and the evidence of plaintiff himself showing that the train was not proceeding at restricted speed within the definition, it was the duty of the court to say so, and to instruct the jury; that plaintiff was himself negligent in violating the rule of restricted speed; and that if the jury believed that that violation was the sole proximate cause of the injury, they should find a verdict for defendant. But, because of the issue made on the negligence of the fireman, it was also the duty of the court to instruct the jury, that if, on the other hand, they believed that the fireman was also negligent in not keeping a proper lookout, or in not properly advising plaintiff of the obstruction on the track, and this negligence concurred with plaintiff's negligence, they should award plaintiff recovery, but diminish the amount of it by such sum in proportion to the total injuries, as the negligence attributable to him bears to the negligence of the fireman.

Appellant, in charge after charge, requested the court to do this, and in addition, objected to the form of the general charge. This, instead of instructing directly upon the rule, as to restricted speed, its meaning and effect, that it had been violated, and that its violation was negligence, submitted to the jury, whether or not it had been violated, and whether, if it had been, the violation was negligent. Thus, there was error, in submitting an issue as to the legal effect of the violation of this rule when it was the duty of the court to direct the jury, that its violation by plaintiff would be negligence. And there was error too, in failing to instruct the jury that on the undisputed facts, plaintiff had violated it. It will not do, as appellee asks us to, to say, that the District Judge advised the jury as to the meaning of the rule in the terms of the rule itself, and that this was all appellant was entitled to have. For, appellant was entitled to have the jury instructed, not only as to the meaning of the rule and its binding effect, and that its violation was negligence, but also on the undisputed facts, that plaintiff had violated it.

Appellee devotes a large portion of its brief to the contention that while Rule 93 was offered in evidence, Rule D-153, which contains the definition of restricted speed, was not, and that when the District Judge charged the jury as to restricted speed in the language of the definition, he really gave appellant more than he was entitled to.

This will not do. The parties by a stipulation, not reasonably capable of any other meaning than that they were to be regarded as in evidence, agreed that the rules appellant pleaded (included in them were 93 and D-153 with the definition of restricted speed), were in force and governed the operation of defendant's trains involved in the action. The whole trial proceeded upon the theory that the rules were in evidence. No objection was taken by appellee to the charge of the court, treating the rules and the definition of restricted speed as in evidence, and it is too late now, for appellee to change front and contend that they were not, especially, since if the point that they were not in, had been made below, the omission could have, at once, been remedied. United States v. Atkinson, 297 U. S. 157, 56 S.Ct. 391, 80 L.Ed. 555; St. Paul Fire & Marine Ins. Co. v. Kaufman Compress Co., 5 Cir., 93 F.2d 156, 158.

Finally pointing to what we said in the opinion on the former appeal; that Rules 93 and 99 were in conflict and whether the crew of 1146-East were negligent in not protecting against S-46, plaintiff's train, was for the jury; and, "further, the rule requiring an engineer to operate his train at restricted speed within yard limits is very indefinite. If the jury believed the testimony of the engineer, they might have considered he was not negligent in this respect;" 100 F.2d page 164, and to the testimony of plaintiff on this trial that he was traveling at restricted speed; appellee insists that, under the rule of the law of the case, these were jury issues.

We do not think so. The rule of the law of the case means that what was decided on the former appeal, is, if the evidence is the...