Baltimore v. Louisville & NR Co.
| Decision Date | 13 November 1944 |
| Docket Number | No. 5292.,5292. |
| Citation | 146 F.2d 358 |
| Parties | BALTIMORE et al. v. LOUISVILLE & N. R. CO. |
| Court | U.S. Court of Appeals — Fourth Circuit |
George P. Cridlin, of Jonesville, Va., and Fred B. Greear, of Norton, Va., for appellants.
C. S. Landrum, of Lexington, Ky., and Walter R. Pennington, of Pennington Gap, Va. (Robert L. Pennington, of Bristol, Va., on the brief), for appellee.
Before PARKER, DOBIE, and NORTHCOTT, Circuit Judges.
These are two actions brought in December 1943 in the Circuit Court of Lee County, Virginia, by the appellants, Hester Hines, administratrix of the estate of Ivan Pearl Hines and Sindie Baltimore, administratrix of the estate of Paul Ray Prichard, herein referred to as the plaintiffs against the Louisville & Nashville Railroad Company, the appellee, herein referred to as the defendant. Both actions were duly removed to the District Court of the United States for the Western District of Virginia, by the defendant on the grounds of diverse citizenship. It was agreed that the cases should be consolidated and heard together and in the early part of May 1944, at a trial at Big Stone Gap, Virginia, after the plaintiffs had concluded their evidence, counsel for the defendant moved the court for a directed verdict which motion the trial court granted, rendering an opinion and entering an order dismissing both actions at the cost of the plaintiffs. From this action of the court below these appeals were brought.
Two boys both sixteen years of age and residents of Pennington Gap, Lee County, Virginia, one named Ivan Pearl Hines and the other Paul Ray Prichard, on the night of July 13, 1943, left their home soon after dark for the purpose of going to a pond near Dryden, Virginia, to hunt frogs. It was approximately five miles from their home to the pond. The Hines boy had been to the same pond on several occasions. The boys were of average size and strength for their ages. They were equipped with one gig and two carbide lamps. Around midnight a man named Lawson stopped at the pond to wash up and saw the two boys. The boys had told their parents that they intended to spend the night and would be back home about five o'clock in the morning. Nothing more was seen of the boys as far as the evidence shows until early the next morning when their bodies were found near a crossing where the county road crossed the track of the defendant railroad. The bodies were badly mangled and one body was found on the railroad track about fifty feet west of the crossing and the other about seventy-five feet west of the crossing. Bones and blood from the bodies were found on the crossing and a severed foot was found just west of the crossing. The two carbide lights used by the boys and a broken gig handle were found near the crossing.
A witness testified that he was up when a train passed close to the house, where he was staying, about four or five o'clock in the morning; that he heard the train whistle for the station at Dryden, about one mile away, and stayed awake until the train passed the crossing and listened for the whistle to be blown for the crossing, as there was a whistling post right near there, and for the bell to be rung but that he did not hear either.
There was evidence to the effect that one of the enginemen was drinking the evening before he was called to go out on his run to Norton and back.
When engine No. 1345, the one taken out by Walker and Hall, was examined, at three o'clock the afternoon of the accident, hair and what was supposed to be brains from both of the boys bodies were found on the engine. One of the boys was a blond and the other was a brunette and hair of different color was found on the engine.
The law with reference to a directed verdict is well settled both in the federal and state courts and the evidence must be construed in the light most favorable to the party against whom the motion is directed. A discussion of this question by this court will be found in Holmes v. Holland Furnace Co., 4 Cir., 103 F.2d 563. We know of no exception to this rule and applying it to the evidence here we find that the jury would be justified in finding that the boys were killed at or near the railroad crossing by engine No. 1345, driven by Walker and Hall. It seems plain that the engine did not stop after it hit the bodies of the boys. This is a very strange circumstance and in view of the fact that no inquiry was made as to...
To continue reading
Request your trial
-
Chicago, Rock Island & PR Co. v. Consumers Coop. Ass'n, 3965
...be denied and the issue submitted to the jury. Allen v. Pennsylvania Railroad Co., 7 Cir., 120 F.2d 63; Baltimore v. Louisville & Nashville Railroad Co., 4 Cir., 146 F.2d 358; Great Atlantic & Pacific Tea Co. v. Robards, 4 Cir., 161 F.2d 929; Jones v. McCullough, 148 Kan. 561, 83 P.2d No ey......
-
Fruehauf Trailer Co. v. Gilmore
...571; Goodall Co. v. Sartin, 6 Cir., 141 F.2d 427, 434; Shapleigh v. United Farms Co., 5 Cir., 100 F.2d 287, 289; Baltimore v. Louisville & N. R. Co., 4 Cir., 146 F.2d 358, 360; Southern Ry. Co. v. Stewart, 8 Cir., 119 F.2d 85, 89; Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 334, 53 S.......
-
Long v. Clinton Aviation Co.
...Company of New York, 8 Cir., 120 F.2d 393, certiorari denied, 314 U.S. 667, 62 S.Ct. 128, 86 L.Ed. 534; Baltimore v. Louisville & Nashville Railroad Co., 4 Cir., 146 F.2d 358; Great Atlantic & Pacific Tea Co. v. Robards, 4 Cir., 161 F.2d 929; C. A. Jackson, Inc. v. Wilhelm, 106 Colo. 140, 1......
-
American Cyanamid Co. v. Fields
...could reasonably be inferred. Tennant v. Peoria & Pekin Union Ry. Co., 321 U.S. 29, 64 S.Ct. 409, 88 L. Ed. 520; Baltimore v. Louisville & N. R. Co., 4 Cir., 146 F.2d 358. It is also true that a jury finding must be based on probative facts, and that a verdict founded on speculation and con......