Estepp v. Norfolk & W. Ry. Co.

• Decision Date: 30 November 1951
• Docket Number: No. 11302.,11302.
• Citation: 192 F.2d 889
• Parties: ESTEPP v. NORFOLK & W. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

192 F.2d 889 (1951)

ESTEPP v. NORFOLK & W. RY. CO.

No. 11302.

United States Court of Appeals Sixth Circuit.

November 30, 1951.

W. A. Daugherty, Pikeville, Ky. (W. A. Daugherty and P. B. Stratton, Pikeville, Ky., on the brief), for appellant.

William Baird, Pikeville, Ky. (W. W. Coxe, Roanoke, Va., Baird & Hays, Pikeville, Ky., on the brief), for appellee.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This is an appeal from a judgment entered on an order for summary judgment issued by the District Court in favor of the defendant railroad company.

The parties will be designated as in the court below.

Plaintiff filed an action for wrongful death, alleging in substance that his decedent, a young boy, on June 22, 1949 was a paid passenger on defendant's train No. 16 proceeding eastwardly from Portsmouth, Ohio. The petition alleged that the defendant contracted to carry the boy, Larry Clifford Estepp, safely to his destination and that it failed to comply with the contract in this, that between Portsmouth, Ohio, and Delorme, West Virginia, and while the boy was a passenger on the train, about four miles west of Ironton, in Lawrence County, Ohio, "by and through the negligence of defendant, its agents, servants and employees," the child was killed, to the damage of the estate.

The court overruled a motion to dismiss the action, but sustained a motion to make more definite the statement of claim and ordered the plaintiff to amend his complaint "so as to set up the manner in which plaintiff's decedent met his death and to point out what the alleged act or acts of negligence on the part of the defendant consists of."

Plaintiff then filed an amended petition, which stated in substance that when train No. 16 arrived at Kenova, it was discovered that Larry Clifford Estepp was not aboard the train; that a search by defendant's servants and agents disclosed that he was not aboard the train; that some four or five days thereafter, at or near a point known as Dempsey's Crossing, in Lawrence County, Ohio, about four miles west of Ironton and approximately eighteen miles from Portsmouth, the crushed, bruised, mangled and decomposed body of the child was found near defendant's railroad tracks; that defendant's train No. 16 and all equipment and appliances pertaining thereto were exclusively controlled and managed by defendant and its agents, servants and employees at the time and place plaintiff's decedent was killed, and the circumstances of the killing of the decedent were such that, in the ordinary course of things it would not have happened if defendant, its agents, servants and employees in charge of the train had used proper care for the safety of the decedent; that the exact manner and cause of the death of the decedent are unknown to plaintiff; and that the death of the decedent was caused by the negligence of defendant and its agents, servants and employees in charge of and operating defendant's train.

Defendant filed an answer which for lack of information denies the appointment of plaintiff as administrator, and denies "all of the remaining allegations contained in said complaint and complaint as amended except to the extent that said allegations are expressly admitted by the following statement of facts," which defendant admits existed and occurred on June 22, 1949, and thereafter.

The answer states in substance that on June 22, 1949, plaintiff's decedent, who was eleven years, eleven months and eighteen days old at the time, boarded train No. 16 at Peebles, Ohio, in charge of Mrs. Flora Estepp and Mrs. Mae Phillips. Proper tickets for all three were bought from Peebles to Delorme, West Virginia, and they boarded the train at Peebles and transferred at Portsmouth, Ohio. When the train reached Pritchard Coaling Station in West Virginia, Mrs. Estepp and Mrs. Phillips discovered that the boy was missing from the train, and notified the conductor. The train was searched and the boy could not be found. Messages were then sent to Kenova and Ironton requesting the authorities to be on the lookout for him. Mrs. Estepp and Mrs. Phillips left the train at Williamson, West Virginia. On Saturday, June 25, 1949, a track walker, employee of the defendant, discovered the boy's body lying in the weeds on the south side of defendant's right of way near a culvert some thirty-three feet from the track, and approximately one and one-half miles west of Hanging Rock, Ohio, near what is known as Dempsey's Crossing. The answer states that defendant "has no knowledge or information as to how or under what circumstances plaintiff's decedent left the train or how or under what circumstances he met his death"; and also alleges that plaintiff's decedent was guilty of contributory negligence.

The court sustained defendant's motion for summary judgment, upon the ground that "there is not shown from the whole record in this case a genuine issue as to any material fact. Under the doctrine of res ipsa loquitur, or rather the rule of law which is drawn from that doctrine, it is necessary that there be alleged some fact on which the negligence of the defendant can be inferred." The court stated "there is a complete absence of probative facts to support even a conjecture."

Plaintiff contends that the doctrine of res ipsa loquitur applies, and creates a presumption of negligence which bridges the gap in the testimony. This rule comes into force where the circumstances accompanying an injury warrant an inference of negligence on the part of the defendant. It applies to carriers of passengers when an injury is caused by some act of the defendant or by some instrumentality which at the time was under the control and management of the defendant, and the accident was...