Chicago, Rock Island & Pac. R. Co. v. Hugh Breeding, Inc.
| Citation | 232 F.2d 584 |
| Decision Date | 20 March 1956 |
| Docket Number | No. 5199.,5199. |
| Parties | CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD COMPANY, a corporation, Appellant, v. HUGH BREEDING, Inc., a corporation, Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
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Nell Rhodes Fisher, Oklahoma City, Okl. (Robert E. Shelton, of Savage, Gibson, Benefield & Shelton, Oklahoma City, Okl., were with her on the brief), for appellant.
Gus Rinehart, Oklahoma City, Okl. (Butler, Rinehart & Morrison, Oklahoma City, Okl., were with him on the brief), for appellee.
Before HUXMAN and PICKETT, Circuit Judges, and MELLOTT, District Judge.
This is an appeal from a summary judgment for the United States District Court for the Western District of Oklahoma, awarding Hugh Breeding, Inc.,1 an Oklahoma corporation, judgment in the sum of $7,939 against the Chicago, Rock Island and Pacific Railroad Company2 and denying relief upon its cross-complaint. Before entering judgment for Breeding, the court overruled the railroad's motion to transfer the case to the United States District Court for Kansas at Wichita for trial under the provisions of 28 U.S.C.A. § 1404(a).
The action arose out of a collision between an oil transport truck belonging to Breeding which was stalled on the railroad crossing at 37th Street, north of the city limits of Wichita, Kansas, and a train being operated by the railroad company. The company alleged as grounds for recovery that the railroad company was guilty of negligence in operating its train at a high and dangerous rate of speed under the circumstances, towit, in excess of 40 miles per hour; that the weather and visibility were very bad; and that the agents of the railroad company failed to heed warnings by flagmen who were attempting to stop or retard the train prior to its reaching the crossing. In addition to its answer, the railroad also filed a cross-complaint in which it alleged the collision was due to the negligent manner in which Breeding operated its truck and that such negligence resulted in damage to the railroad company's equipment for which recovery was sought.
The evidence before the court in the form of depositions upon which summary judgment was granted showed these facts. Gainer, the driver of the truck, left Tulsa, Oklahoma, on the morning of the day of the accident with a load of gasoline which he unloaded in Wichita, Kansas, about 5:30 p. m. It had been snowing and the roads were slick and slippery. He had chains with him but did not put them on the tires. After unloading his gasoline he went to Phillips Petroleum Company in North Wichita where he loaded his truck with more gasoline to be delivered to an air line company at Tulsa, Oklahoma. 37th Street is in the country adjacent to Wichita on the north. It runs east and west and is immediately south of Phillips' plant where Gainer obtained his load of gasoline. Upon leaving Phillips' plant, Gainer turned left on 37th Street, intending to cross a railroad track which was near by and at right angles to the street. As he turned left onto 37th Street, the left rear wheel of the truck slid off the north side of the street and, as he put it, he was "stuck." The tractor of the truck was sitting squarely on the railroad track.
Being unable to extricate the truck, he left it and ran to a near by place to attempt to contact the railroad office by phone but was unable to do so. In the meantime two motorists stopped and proceeded north along the right of way in an attempt to flag the train which was approaching at about 40 miles per hour. Because of the weather conditions the trainmen were unable to see them from any appreciable distance. The flagmen were observed at about the same time the truck was seen on the track. The engineer applied the emergency brake but was unable to stop before hitting the truck.
It is without dispute that visibility was very poor and that because of whirling and swirling snow along the ground the engineer could see but a very short distance ahead of the engine. One witness testified the visibility was about thirty feet. The engineer testified that conditions were nearly blizzard conditions and that at most he could see about one hundred feet and that he could not stop within the range of his vision at the speed he was going. There was testimony by a railroad brakeman that the railroad had a rule that "if you can't see, why then you are going to slow down to where you can see." Other railroad witnesses testified there was no such rule. There was other testimony "That the condition of the whole thing would govern the operation of the train." This in substance was the evidence upon which the trial court granted summary judgment for plaintiff.
Preliminary to a consideration of the principal question, we must dispose of appellant's contention that the trial court erred in refusing to sustain its motion for a change of venue from the Western District of Oklahoma to the United States District Court of Kansas at Wichita.3 Section 1404(a) is a new section in the Code. The subject matter thereof relates to the old doctrine of forum non conveniens. By the adoption of this section Congress intended to broaden the old doctrine of forum non conveniens and to especially ameliorate the harshest part of the old rule which required the court to either retain the case or dismiss it. It is the spirit of the new section to vest the trial court with the exercise of a reasonable discretion in determining whether it would exercise its jurisdiction or transfer the case to another forum for trial.4 It has been held that the judgment of a trial court will be reversed only where the appellate court finds there has been an abuse of discretion.5
In Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 843, 91 L.Ed. 1055, the Supreme Court said that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Various courts have adhered to this pronouncement.6
Here we have practically no dispute as to what occurred. Neither is the amount of damage suffered by either of the parties in dispute.7 The eyewitnesses to the accident are few in number and their testimony is not in conflict. They consist of the driver of the truck, the two persons who undertook to flag the train and the engineer and his fireman who were in the engine at the time of the accident. Even the conductor of the train is not a key witness. His testimony at most would seem to be cumulative and perhaps corroborative of that of the engineer and the fireman, testimony which is not...
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