Atlantic Coast Line R. Co. v. Mitchell, 11743.

• Decision Date: 08 November 1946
• Docket Number: No. 11743.,11743.
• Citation: 157 F.2d 880
• Parties: ATLANTIC COAST LINE R. CO. v. MITCHELL.
• Court: U.S. Court of Appeals — Fifth Circuit

157 F.2d 880 (1946)

ATLANTIC COAST LINE R. CO. v. MITCHELL.

No. 11743.

Circuit Court of Appeals, Fifth Circuit.

November 8, 1946.

M. B. Peacock and H. H. Perry, Jr., both of Albany, Ga., and G. L. Reeves, of Tampa, Fla., for appellant.

S. B. Lippitt, of Albany, Ga., for appellee.

Before HOLMES, WALLER, and LEE, Circuit Judges.

LEE, Circuit Judge.

Mrs. Henry Mitchell originally brought this action against the Atlantic Coast Line Railroad Company in the City Court of Albany, Georgia, under the provisions of sections 105-1307 and 105-1308 of the Code of Georgia Annotated, to recover damages for the death of her daughter, Rhona Russell; the defendant removed the action to the court below. Rhona Russell's death occurred September 30, 1944, when she attempted to board a passenger train of the defendant railroad at Albany, Georgia. The jury rendered a verdict in the sum of $15,000 in favor of the plaintiff, and the defendant appealed from the judgment entered thereon.¹

The deceased was proceeding, as a coach passenger, from Detroit, Michigan, to Tampa, Florida, on a passenger train known as the Southland, and thereon she met another passenger, Robert L. Marovec. Upon the arrival of the train in Albany, the deceased, in the company of Marovec, alighted for the purpose of obtaining refreshments. They first went into a restaurant located off the premises of the station; later they entered a restaurant in the station. When they emerged, they saw that the Southland, on the third track, was departing at a speed of about four to five miles an hour.² They immediately ran toward the moving train. Marovec stopped to inquire of the general yardmaster of the railroad whether the moving train was his train to Tampa. While Marovec was eight to ten feet behind the deceased, she attempted to board the third Pullman car from the rear of the train.³ The trap of this Pullman car was up and the door was open. The evidence as to whether the deceased had anything in her hands is in conflict. Marovec testified as to the facts surrounding the death of the deceased as follows:

"When Miss Russell grabbed hold of the grab iron, the momentum of the train swung her around, so that her back hit the side of the train and she was knocked down on her back at the edge of the platform with her feet in the direction of the rear of the train. In an attempt to sit up, due to the excitement, her feet came up first and hooked on the undercarriage of the train. Her knees gave way, and she was pivoted end from end, so that her back was to the rear of the train and she was in a sitting position. She was then struck in the back of the head by the undercarriage of the train and was pivolated approximately ninety degrees clockwise and she then fell backwards off the edge of the platform and her neck was resting on the rail. I took hold of her ankles in an attempt to pull her away and just then the wheels ran over her neck at the same moment."

Several witnesses testified as to the speed of the train at the time the deceased attempted to board it. The estimations varied from eight to ten miles per hour up to twenty-five to thirty miles per hour.

The alleged negligence of the defendant consisted of: (1) Starting the train before the deceased boarded it; (2) failing to make an effort to prevent deceased from undertaking to board the train and to warn her of the danger of boarding; (3) failing to make an effort to stop the train and prevent injury to deceased; (4) operating the train with one of the vestibule doors open; (5) attaching to the train two locomotives, having twice the power necessary to pull the train, and operating the train at an unusual, excessive, and unnecessary rate of speed.

On this appeal the railroad contends, first, that the district judge committed several harmful errors in his charge to the jury, and, second, that he erred in ruling that the railroad was not entitled to a verdict as a matter of law, for one of the following reasons: (a) The evidence disclosed no violation by the railroad of any duty due the deceased; (b) the evidence disclosed that the sole proximate cause of her death was her own conduct in undertaking to board the train after it had begun to move out of the station; or (c) the deceased could have, by the exercise of ordinary care, avoided the consequences of the railroad's negligence. We will assume but not decide that the district judge correctly charged the jury and that the district judge correctly refused to direct a verdict for the railroad on the ground that the evidence disclosed no violation by the railroad of any duty to the deceased.

The evidence in the record is not in conflict with regard to the facts material to our views of the case. It establishes that the deceased could have, by the exercise of ordinary care, avoided the consequences of any negligence on the railroad's part. Stated in different words: The evidence shows that the deceased's own conduct in attempting to board the train moving at least eight miles per hour was the sole proximate cause of her death.

The applicable statutory law of Georgia provides:⁴

Sec. 94-703. (2781) "Consent or negligence of person injured as defense; comparative negligence as affecting amount of recovery. — No person shall recover damages from a railroad company for injury to himself or his property, where the same is done by his consent or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of fault attributable to him."

Sec. 105-603. (4426) "Diligence of plaintiff. — If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. In other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.

In construing these sections, the Sixth Circuit Court said:⁵

"Sections 94-703 and 105-603, when read together, introduce a variation from the common law in one respect only. They declare, first, that a plaintiff shall not recover when the accident is caused by his own negligence. They further declare that, even if the defendant was negligent in such a way as to cause the injury, the plaintiff shall not recover if, with the defendant's negligence as an existing...