Allan Dermott v. Charles Severe

• Decision Date: 28 May 1906
• Docket Number: No. 244,244
• Citation: 202 U.S. 600,26 S.Ct. 709,50 L.Ed. 1162
• Parties: ALLAN L. McDERMOTT, Receiver of the City & Suburban Railway of Washington, Plff. in Err. , v. CHARLES E. SEVERE, by His Next Friend, William B. Severe
• Court: U.S. Supreme Court

202 U.S. 600

26 S.Ct. 709

50 L.Ed. 1162

ALLAN L. McDERMOTT, Receiver of the City & Suburban Railway of Washington, Plff. in Err.,

v CHARLES E. SEVERE, by His Next Friend, William B. Severe.

No. 244.

Argued April 20, 23, 1906.

Decided May 28, 1906.

[Syllabus from pages 600-601 intentionally omitted] Messrs. George P. Hoover and Charles A. Douglas, for plaintiff in error.

Messrs. A. S. Worthington, William Meyer Lewin, and Charles L. Frailey for defendant in error.

Mr. Justice Day delivered the opinion of the court:

This is an action to recover damages because of an injury received by Charles E. Severe, an infant, who was run over at a plank crossing of the railway company, the railroad then being in charge of the defendant, operating the same as receiver.

The plaintiff below recovered judgment in the supreme court of the District, which was affirmed in the court of appeals.

At the place of the accident there was a plank crossing, the planks laid between and on either side of the rails, at a point where a street was opened to the westward, and, on the other side of the track, a footpath, but no thoroughfare for vehicles. The crossing was one of the regular stopping places of the cars of the street railway near Riverdale, Maryland. The words 'Cars stop here' were on both sides of the telegraph pole at the crossing. At the time of the injury plaintiff was six years and ten months old. His youngest brother, Raymond, was a little over five years of age, and with them another brother, Edward, about nine years old. The injured boy, at the time he was hurt, had his foot caught in a space between the rail and the edge of the plank on the inside. There was testimony tending to show that this opening was 2 to 2 11-16 inches wide. The accident happened between 2 and 3 o'clock in the afternoon of August 31, 1902. The testimony discloses that the boys had expected to meet their parents, returning from a visit, about 2 o'clock that afternoon, and went to the crossing for that purpose. Edward, the oldest boy, went to his father's house nearby to get a drink of water; while he was gone the youngest boy, Raymond, got his foot caught in the space between the west rail and the plank next the inside of the rail. Plaintiff came to the assistance of his little brother, whose foot he helped to extricate, and was himself caught in the space between the plank and the rail. Raymond ran to the house to notify Edward that the plaintiff's foot was caught. Together the two boys ran back towards the crossing and shortly thereafter the plaintiff was struck and so severely injured that it became necessary to amputate his leg below the knee.

In the view we take of this case we do not consider it necessary to state in detail the testimony as to the construction of the crossing and the alleged negligence in leaving the space in which the boy's foot was caught. Under the pleadings and the testimony the jury was directed to return a special verdict upon three propositions: 1. Was the defendant guilty of negligence in the improper construction or maintenance of the crossing? 2. Was the defendant guilty of negligence in the improper management of the car? 3. Did the motorman do all in his power to stop the car as soon as he saw the plaintiff's foot was caught in the space between the rail and plank? The jury answered the first and second questions in the affirmative; being unable to agree on the third, the plaintiff consented that it might also be answered in the affirmative.

In view of these special findings, if the issue concerning either of the first two of them was properly submitted to the jury upon sufficient evidence and found against the company, the judgment of the court of appeals must be affirmed.

In delivering the opinion of the court of appeals, Mr. Chief Justice Shepard says:

'It is conceded, by reason of the special findings of the jury, that the defendant was guilty of negligence, not only in the construction and maintenance of the crossing, but also in the management and control of the car; that error in the instructions upon both points must be shown in order to obtain a reversal of the judgment, because either finding alone is sufficient support therefore.'

It is insisted in argument here that the court ought to have taken the case from the jury because of the insufficiency of the evidence to sustain a verdict. In the view we take of the case as made and submitted concerning the conduct of the motorman at the time of the accident and the instructions given to the jury in that connection, we do not deem it necessary to consider the correctness of the charge submitting the question as to the negligent construction of this crossing. We think the testimony was ample to carry the case to the jury upon the question of the negligent conduct of the motorman at the time of the injury, and that this issue was properly left to the jury under instructions which afford no ground for reversal.

Negligence only becomes a question of law to be taken from the jury when the facts are such that fair-minded men can only draw from them the inference that there was no negligence. If fair-minded men, from the facts admitted, or conflicting testimony, may honestly draw different conclusions as to the negligence charged, the question is not one of law, but of fact, and to be settled by the jury under proper instructions. Richmond & D. R. Co. v. Powers, 149 U. S. 43, 37 L. ed. 642, 13 Sup. Ct. Rep. 748; Northern P. R. Co. v. Everett, 152 U. S. 107, 38 L. ed. 373, 14 Sup. Ct. Rep. 474.

In addition to the facts to which we have adverted upon the branch of the case which we deem it necessary to consider, the testimony tended to show that there was nothing to prevent the motorman from seeing the crossing for a distance more than sufficient to have avoided the injury by controlling or stopping his car; that the boy Edward waved his hat and 'hollered' for the motorman 'to stop,' when the car was 50 or 60 feet away. A passenger who was on the car testified that, his attention being called by the motorman ringing his bell, he saw a larger boy than the one on the track, waving his hand. Another passenger testified that, when from 60 to 100 yards from the place, he saw three boys, apparently standing on the platform or crossing. Plaintiff says that just before he was hurt he saw his brother waving his hat and 'hollering' to the motorman, and that he too waved his hand at the motorman. Witnesses testified that the car, when stopped, came up with a sudden jolt. There was also testimony tending to show that boys were in the habit of playing at this crossing and running back and forth over it.

The motorman testified that he was in charge of the car and was on the Washington-bound track at the time; that he saw the boys when he was about 3 or 400 feet away; when he first saw them there were three boys on the track, running and jumping backwards and forwards on the crossing. He sounded his gong when he approached, about 150 feet away, and repeatedly thereafter until he reached the boy; when he first saw that the boy was not going to get off the track he was about 30 or 35 feet away from him; that he then put on the brakes, reversed the power, and did everything possible to stop the car. He had often seen the plaintiff on the track at that place and on the crossing at Riverdale, Maryland; that he had seen him remaining on the track until the car got close to him, when he would jump off the track, clap his hands, and laugh; had seen the plaintiff and other boys do the same thing; the first thing that indicated to him that the boy would not get off the track was when he saw that his foot was caught; that at that time he was from 30 to 35 feet from him; that he did not see the boys wave their hands or hats or making any motions to him or did not hear them calling to him. There was testimony tending to show, on the part of the plaintiff below, that he was not in the habit of playing at this crossing, and that he and his brothers had not been there before in the manner stated by the motorman. The motorman testified further that he saw the boy on the track when he was about 3 or 400 feet away.

We are of opinion that, in the attitude of the case on this subject, it was not error to leave to the jury, under proper instructions, to find whether or not there was negligence in managing the car just before the accident occurred. Upon this part of the case the instructions requested were as follows:

'If the jury shall find from the evidence that the motorman sounded his gong when he was far enough away from the plaintiff and his associates so that they had sufficient time to leave the track before the car reached them, he had the right to assume that they would do so, and he was not required to commence to stop the car until such time as he discovered that the plaintiff had his foot caught between the rail and the plank; and if they shall further find that, as soon as the motorman made such discovery, he did all in his power to stop the car before it struck the plaintiff, then they should find for the defendant.

'If the jury find from the evidence that the motorman sounded the gong when he was far enough away from the plaintiff and his associates so that they had sufficient time to leave the track before the car reached them; and if they shall further find that, as soon as the motorman saw that the plaintiff would not or could not leave the track before the car reached him, he did all in his power to stop the car before it struck the plaintiff, and shall further find that the construction was not negligent, then they should find for the defendant; and, in determining whether the motorman should have commenced to stop the car before he did, they may consider the fact, if they find it to be a fact from the evidence, that plaintiff and others were in...