Atlantic Coast Line Railroad Company v. Sapp

• Decision Date: 24 December 1957
• Docket Number: No. 16425.,16425.
• Citation: 248 F.2d 889
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Mrs. Woodrow SAPP, Mrs. James H. Tyre and Mrs. Leroy Beckham, Sr., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

248 F.2d 889 (1957)

ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Mrs. Woodrow SAPP, Mrs. James H. Tyre and Mrs. Leroy Beckham, Sr., Appellees.

No. 16425.

United States Court of Appeals Fifth Circuit.

November 1, 1957.

Rehearing Denied December 24, 1957.

Larry E. Pedrick, Waycross, Ga., L. J. Bennet, Brunswick, Ga., Bennett, Pedrick & Bennett, Waycross, Ga., of counsel, for appellant.

J. H. Highsmith, Baxley, Ga., E. Way Highsmith, Brunswick, Ga., James P. Mozingo, III, Darlington, S. C., for appellees.

Before HUTCHESON, Chief Judge, and BORAH and CAMERON, Circuit Judges.

BORAH, Circuit Judge.

These are appeals from adverse judgments entered upon jury verdicts in three separate actions brought by appellees to recover damages for the wrongful deaths of their respective sons, Leonard Holmes, Perman Trye, and Leroy Beckham, Jr., which occurred when a 1950 Oldsmobile automobile in which they were riding was driven into a train of freight cars moving across Pyles Marsh Crossing between Brunswick and Jesup, Georgia.

In the complaints it was alleged, among other things, that defendant was guilty of wilful and wanton negligence in that it failed to provide a statutory cross arm sign or other observable sign or warning of the existence of the crossing, and did block the highway without throwing out lighted fusees in conformity with its alleged practice to so warn vehicular traffic of the presence of cars upon the crossing. Defendant denied each of these allegations of negligence and affirmatively pleaded that the negligence of the driver of the automobile and the two passengers in operating the vehicle at an excessive rate of speed and in failing to exercise ordinary care for their own safety was the sole and proximate cause of the collision.

The three cases were consolidated by the court below and a trial by jury was had. At the conclusion of plaintiffs' evidence, defendant moved for and was denied a directed verdict in each case. Whereupon, and after defendant elected not to produce its evidence, the court submitted the action to the jury. Upon return of the jury's verdicts for plaintiffs, defendant unsuccessfully moved for judgments n. o. v. or in the alternative for a new trial, and these appeals followed. The sole question confronting us for decision is whether the District Court erred in denying these motions.

The accident occurred shortly after midnight on the morning of October 26, 1951. At that time, and as they approached the crossing, the three minors, Holmes, Tyre and Beckham, all born and reared in Brunswick, were traveling in a northeasterly direction on U. S. Highway 25 from Brunswick toward Jesup, Georgia. Earlier in the evening, Beckham and Tyre in company with two young girls had driven out this highway to a point beyond Pyles Marsh Crossing and had returned over the same route. One of the girls who on this occasion had driven the automobile for a short period testified that it was in good running condition and that the brakes and headlights were functioning properly. Both girls testified that they encountered some fog on the road that night which they described variously as very foggy, spotty, or in patches, but one of these witnesses was not asked and the other did not recollect whether the weather conditions which they described existed at the crossing in question.

The defendant's track at Pyles Marsh Crossing runs in an east-west direction across Highway 25, and it was admitted by the railroad that it maintained no automatic signals or other warning lights at this crossing, and that no employee of defendant was stationed there to flag or otherwise warn motorists of the presence of defendant's train. However, the evidence, contrary to the allegations of the complaints, does show that an "X" or cross arm sign was located on the Brunswick side of the crossing in conformity with applicable law. It also affirmatively appears that a motorist traveling toward Jesup on Highway 25 would, upon approaching the crossing, have his view from the east obstructed by an embankment, deep underbrush, and trees. But it is equally clear from the testimony that these physical conditions which existed on defendant's right of way would not prevent a motorist's seeing a moving freight train on the crossing directly in front of him and across the highway he was traveling.

The witness Robert W. Rozier, who operated a restaurant which was situated some 150 feet from the intersection of defendant's tracks and Highway 25, testified that he heard the train's warning whistle blow as it approached the crossing from the east. The witness stated that he was then seated in a lighted restaurant dining room looking through a plate glass window and although it was foggy outside he saw not only the approaching engine headlight, but also several of the dark colored freight cars — some high and some low or "gondola" types — as they passed over the crossing. He stated further that he had on prior occasions seen trains pass over the crossing, had seen them throw out fusees, but that he did not see a lighted fusee dropped from the engine on the night in question.

No eyewitness saw the automobile immediately before or when it crashed into the eighty-third car of defendant's ninety-two car freight train, but both Rozier and his twelve year old nephew, Robert Moody, heard the crash, saw sparks fly in the vicinity of the crossing, and a few moments later heard a loud explosion which illuminated the sky some fifty or sixty feet...