Matsumoto v. Chicago & NW Ry. Co.

Decision Date14 June 1948
Docket NumberNo. 9388.,9388.
Citation168 F.2d 496
CourtU.S. Court of Appeals — Seventh Circuit

Drennan J. Slater and Lowell Hastings, both of Chicago, Ill., for appellant.

Edwin L. Bennett and Robert J. Rafferty, both of Chicago Ill., for appellee.

Before KERNER and MINTON, Circuit Judges, and DUFFY, District Judge.

KERNER, Circuit Judge.

In its appeal defendant seeks to reverse the judgment of the District Court ordering it to pay to plaintiff damages in the sum of $4,250. From a jury verdict of $5,000 the court ordered a remittitur of $750. Defendant moved for a directed verdict at the conclusion of plaintiff's evidence and again at the conclusion of all evidence. It likewise moved for judgment non obstante veredicto. All motions were denied, and its appeal is predicated upon the grounds that the denial of these motions constituted reversible error.

Plaintiff's complaint is based upon a personal injury received while she was a paying passenger on one of defendant's trains which was running from Chicago toward Oshkosh, Wisconsin, and under the control of defendant and its agents. The complaint alleges that defendant was duty bound to exercise the highest degree of care toward its passengers; that it failed to do this; that as a result, in or near Eden, Wisconsin, defendant negligently decreased the speed of the train, suddenly and without warning, and operated it with a sudden and violent lurch or jerk; that as a result plaintiff was thrown from her position in a passenger car and injured. Defendant's answer denied the allegation of negligence and denied that plaintiff was injured as a direct result of the alleged acts of negligence set out in the complaint.

Miss Matsumoto and a physician testified on behalf of plaintiff, while defendant called four witnesses, all of whom were its employees on the train in question, in its defense. In view of the nature of the case, a recapitulation of the testimony of the witnesses, especially that of plaintiff and the brakeman who were in the same car at the time of plaintiff's injury, seems essential. From the testimony it was established that the train involved was running between Chicago and Ishpeming, Michigan; that it left Chicago at 4:10 P. M. on Saturday, August 31, 1945, which was the Labor Day week-end; that the train was powered by two diesel units and carried twelve coaches; that plaintiff rode in car No. 3411 which was fourth from the head of the train; that the normal capacity of the train was 900 passengers; that it carried approximately 1400 passengers; that plaintiff was unable to get a seat in the coach proper; and that she rode in the powder room where she was able to sit intermittently. From photographs of the car which were submitted as exhibits we note that the powder room was, to one facing the engine, on the left of the aisle and to the front of the car. It was furnished with two chairs, a vanity set, and a wash stand.

Plaintiff's testimony was that during the period complained of she was standing with her back to the window and facing the door of the powder room; that she was about two feet from the wall to her left, which was constructed of metal; that the wash basin was to her left, while the chairs and the vanity set were to her right; that she was injured by an "awful jolt" which came without warning and which "slammed her against the left wall." She was knocked unconscious and thereafter failed to remember anything until revived. In describing the jolt with reference to the train's direction, she testified that it was more violent than the type experienced in the usual stop; that it came from the direction of the engine, and that it did not come from a sidewise direction; that her injuries were in the area of the upper right check bone; that as a result of her injuries she had to submit to two operations; and that at the time of the trial she suffered occasional numbness of the injured cheek.

Defendant submitted evidence that the train in question was involved in a highway crossing accident at a point two miles north of Eden, Wisconsin. The crossing is at the grade level and from the panoramic and other photographs submitted as defendant's exhibits it is clear that it is a single track running in northwesterly and southeasterly directions; that there is an advance warning sign several hundred feet before the crossing; and that there was a white sign and a bell at the crossing. Defendant submitted further evidence that the engine's bell was ringing for some time before the crossing; that whistle warnings were sounded shortly before the train reached the crossing; that the engine's headlights, the one a standard, the other a Mars light which casts its beam in a figure eight rotary motion, were lighted at the time of the accident; that the crossing bell was ringing as the train approached; that the highway runs in a northerly and southerly direction at the crossing; and that after the engine passed the crossing, an automobile ran into the side of the first coach back of the engine. The force of the collision and the resulting concussion was such that the automobile in question was dragged off the highway where it became embedded between an embankment to the northwest of the highway and the train. The effect of this was such that as the balance of the train passed, several of the remaining cars, including car No. 3411 in which plaintiff was riding, and the automobile scraped against each other. Car No. 3411 as well as others was damaged. From defendant's photographic exhibits it is evident that the side door at the front of car No. 3411 was considerably scratched; that the two windows next to the door, the second of which was the powder room's, were broken; that the body of car No. 3411 was considerably scratched and that two other windows in the center at the end of the car were also broken.

The brakeman who was stationed in the aisle of car No. 3411 just outside the powder room at the time the automobile struck the train testified that he pulled the emergency brake shortly after the accident; that in regard to the plaintiff's injury he heard a noise; that he saw a sailor who was in the vestibule pass through the air from the left to the right side; that he saw the plaintiff behind him on the floor; that he then pulled the emergency brake some five or six seconds after hearing the noise and after seeing the plaintiff on the floor; that no violent jerk occurred after he pulled the emergency cord; (defendant's remaining three witnesses who were not in car No. 3411 likewise testified to the absence of a jerk when the emergency cord was pulled); that the train was going at the rate of seventy to seventy-five miles per hour; that the emergency brakes stopped the train within three-fourths of a mile; that the regular utility brakes would have required a little over a mile to stop the train; that after application of the emergency brakes the train slowed from its speed of about seventy-five miles per hour to fifty-five or fifty miles per hour within five or six seconds.

It is apparent from the foregoing, and both parties recognized it in the trial court, that the alleged negligence of defendant was solely the result of what the brakeman did or did not do when he pulled the emergency cord. Defendant submitted evidence that it was exercising due care when the automobile operated by the third person ran into the train. Plaintiff concedes that the automobile in question collided with the train, and consequently she concentrates her argument on the effect of pulling the emergency cord on the train which was traveling at between seventy and seventy-five miles per hour.

Plaintiff contends that as a passenger on defendant's train the fact that she was violently thrown and injured by the violent jerking of defendant's train prima facie established her case and made applicable the doctrine of res ipsa loquitur.1 The classic definition of the doctrine is that "when a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as, in the ordinary course of things, does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care." San Juan Light & Transit Co. v. Requena, 224 U.S. 89, 98, 32 S.Ct. 399, 401, 56 L.Ed. 680. We are satisfied that the initial elements of the doctrine — the plaintiff was without fault, the train and the emergency brake were under the exclusive control of defendant, the injury complained of was outside of the ordinary scope of operating a train — were present. But in view of defendant's two-fold explanation of the occurrence of plaintiff's injuries — first, that her injuries were caused by the wedged automobile which struck the train as it passed by and it was that which threw her from her position against the window and knocked her to the floor; second, that the application of the brake was made while plaintiff was unconscious in the aisle, and without a violent jerk — we must turn to the applicable State law to determine whether it was evidence of a sufficient nature to preclude the application of the doctrine.

The applicable law is that of Wisconsin. In Dehmel v. Smith, 200 Wis. 292, 227 N.W. 274, the facts were that an elevator in a hotel dropped with a jerk or jar some eighteen inches to two feet below the first floor level. As stated by the court, Wisconsin follows the rule that the burden of proof is upon plaintiff in cases of res ipsa loquitur. It explained, however, that the application of the rule is such that upon plaintiff's proof setting up the doctrine, defendant must overcome the presumption of negligence established. If the defendant fails to do this, plaintiff aided by his presumption has lifted the burden. The court held that the defendant...

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  • Dick v. New York Life Insurance Co
    • United States
    • United States Supreme Court
    • May 18, 1959
    ...196. And see Balchunas v. Palmer, 2 Cir., 151 F.2d 842; Sylvania Electric Products v. Barker, 1 Cir., 228 F.2d 842; Matsumoto v. Chicago & N.W. Ry. Co., 7 Cir., 168 F.2d 496. After all the evidence was in, the district judge, who was intimately concerned with the trial and who has a first-h......

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