Norfolk & W. Ry. Co. v. McKenzie

• Decision Date: 08 January 1941
• Docket Number: No. 8383.,8383.
• Citation: 116 F.2d 632
• Parties: NORFOLK & W. RY. CO. v. McKENZIE.
• Court: U.S. Court of Appeals — Sixth Circuit

116 F.2d 632 (1941)

NORFOLK & W. RY. CO. v. McKENZIE.

No. 8383.

Circuit Court of Appeals, Sixth Circuit.

January 8, 1941.

O. T. Hinton, of Pikeville, Ky. (O. T. Hinton, of Pikeville, Ky., W. W. Coxe, of Roanoke, Va., and S. T. Saunders, of Washington, D. C., on the brief), for appellant.

John W. McKenzie and R. C. Van Sant, both of Ashland, Ky. (Hannah, Van Sant & McKenzie, of Ashland Ky., on the brief), for appellee.

Before SIMONS, HAMILTON, and MARTIN, Circuit Judges.

HAMILTON, Circuit Judge.

This is an appeal from a judgment pursuant to a jury verdict for Six Thousand ($6,000.00) Dollars in favor of appellee for personal injuries. The single question is whether there was substantial evidence to support the verdict.

Appellant maintains and operates a double track steam railroad which passes over United States Highway 52 at a point approximately five miles west of Ironton, Ohio. The underpass has an S-curve, with the tracks at an elevation of approximately twenty feet. The railroad over it is constructed of steel girders, running parallel with the tracks, with supporting cross steel girders underneath, overlaid with cross ties with open spaces of fourteen inches between the ends of the cross ties and the outside girder of the west-bound track. On the morning of September 8th about 2:30 o'clock a. m., one of appellant's freight trains, consisting of 149 gondola cars of coal and two cars of stone passed over the underpass. With one exception, all of the cars containing the lump coal originated in Williamson, West Virginia, and had moved for more than 125 miles over tracks with sharp curves before it reached the underpass.

Appellee testified that while the train was passing over the underpass, he drove under it in an automobile and while so driving coal fell from the train into his car, one lump from eight to ten inches in diameter passing through the top making a hole approximately fourteen inches in diameter and striking him on the head and another lump about the size of a quart cup struck the windshield of the car, broke a hole in it and shattered on the floor of the automobile. He claimed he was seriously and permanently injured as a result of the blow. No one witnessed the accident. Appellee claims to have stopped his car within a few feet of the underpass and that he was unconscious for a brief period afterwards. Before reaching the overpass, the track of appellant was straight and level for a distance of half a mile, and from seventy-five to one hundred trucks loaded with coal and ranging in capacity from three to twelve tons traveled this highway daily.

Appellee's car was a 1935 model Ford sedan and the top through which the hole was made was of metal with the exception of the center panel, which was of synthetic leather stretched over a layer of composition fibre padding, one-quarter inch thick, supported by a one-inch mesh chicken wire, which in turn was supported by wooden horizontal braces, one inch thick and one and one-half inches wide, extending from one side of the panel to the other. No particles of coal were found on top of the car or on the fabric.

Shortly after the accident, a truck driver came upon the scene and at appellee's request called the State Highway Patrol of Portsmouth, Ohio, and a little later two other men operating a truck stopped at the underpass, examined the car, the coal on the highway and appellee's injury.

The first truck driver testified he was in a hurry and did not examine the scene of the accident but that appellee seemed to be injured. The drivers of the second truck who arrived about 3:00 o'clock a. m., found appellee sitting on the running board of his car in a disheveled condition, with his face dirty and scratched and his right arm hanging limp. The car was approximately ten to fourteen feet from the railroad tracks. They examined it and found a large hole in the top and a small one of about one-sixteenth of an inch in the windshield, and coal was on both the back and front floors of the car and some on the highway.

A highway patrolman testified he arrived at the underpass at about 5:30 o'clock a. m. and found appellee in the car in a very nervous condition with the right side of his face skinned and that he was complaining about his shoulder. He corroborated the truck drivers as to the hole in the top and windshield of the car and said he offered to drive appellee to Ironton, but was advised by him that he thought he was able to drive the car that far and he did start it in that direction.

Appellee went to the hospital where he remained about a month. An examination by a doctor disclosed bruises on the right side of his face and head and bruises on his right shoulder and a highly nervous condition. Witnesses for appellant testified that at the time of the accident appellee was en route to Ashland which is about eighteen miles east of Ironton and that he drove through the underpass at least three times and that after being allegedly struck as he was emerging from under the trestle at a speed of from fifteen to twenty miles an hour, he veered to the left and stopped his car on the left side of the highway about fourteen feet from the trestle, where he remained for three or four hours, declining assistance from people passing, some of whom he hailed and called attention to the holes in the top and windshield of his car and that after the arrival of the highway patrolman about 5:30 o'clock a. m., he drove his car unassisted to Ironton. They also testified he had not been regularly employed for a considerable time prior to the accident and that a few weeks prior thereto he had for the first time in his life taken out an accident policy.

Immediately after...