Baltimore & O.R. Co. v. Taylor

• Decision Date: 31 March 1911
• Docket Number: 991.
• Parties: BALTIMORE & O.R. CO. v. TAYLOR.
• Court: U.S. Court of Appeals — Fourth Circuit

186 F. 828

BALTIMORE & O.R. CO. v. TAYLOR.

No. 991.

United States Court of Appeals, Fourth Circuit.

March 31, 1911

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

This is an action instituted by the administratrix of Harry B Taylor, deceased, against the Baltimore & Ohio Railroad Company in the circuit court of Wood county, W. Va., from which it was removed to and tried in the Circuit Court of the United States for the Northern District of West Virginia; trial resulting in a judgment for the plaintiff, to which this writ of error has been sued out by the defendant company.

The cause of action is based upon the death of the plaintiff's decedent by the alleged negligence and wrongful acts of the defendant company. Taylor was an engineer in the employ of the railroad company. At the time of his death he had been in such employ as engineer more than five years, having been promoted from the position of fireman. He was 33 years old, was a strong, vigorous man, in good health, of temperate habits, and good character, and left surviving him a wife and one child, a boy 2 1/2 years old.

The railroad company at the time was operating among its other lines one extending from Wheeling to Kenova, in West Virginia, a distance of over 200 miles wholly along the banks of the Ohio river. In January, 1907, the operation of this line of road had been greatly impeded by the high waters of this river, and for the three days prior to the 22d of this month operations had been altogether suspended except as to work trains engaged in the repair. On the 22d, however, the waters had so far receded that operations had been resumed and trains were running under special telegraphic orders between the stations of Parkersburg and Point Pleasant, a distance of about 80 miles, in or near the middle of the line. At or about 1 o'clock in the afternoon of the 23d a special train, consisting of an engine, tender, and 27 freight cars, some of which were loaded with steel rails, was ordered out of Parkersburg yard to proceed down the river or south toward Point Pleasant, subject solely to telegraphic orders. Taylor was engineer on this train. His train arrived at Ravenswood, 33 miles below Parkersburg, some time after 6 o'clock, where orders 25 and 67 were received by its conductor and Taylor, the engineer. Order No. 25 directed reduction of speed to 10 miles per hour between certain points set forth, to 6 miles per hour between certain other points, and then set forth: 'Fill at bridge just east of Longdale is settling. Run slow. No water at Letart or Spillman. ' The station of Letart was 16 miles below Ravenswood and was a telegraphic one. When the train arrived there, the white signal was displayed, indicating that its block was clear, no orders were there for it, and that it was at liberty to go head. Some 2 1/2 miles below Letart (sometimes spoken of as south and sometimes west in the record) was a fill, some 150 feet long and 30 feet high, in the deepest place, which had originally been a trestle; but in 1901 a stone or concrete arched culvert had been put in to allow a small stream to pass through, and the place had been then filled with sand, gravel, and other earth material. Backwater from the river through this arch had filled the low ground both above and below this fill to within a few feet of its top. When Taylor's train reached this fill, it was running at a speed variously estimated at between 10 and 15 miles an hour. When the engine went on it, the fill sank, 'squashed out,' as the witnesses expressed it, the rear of the engine sank down and overturned, killing Taylor, his fireman, and a brakeman who were at the time on the engine.

The allegations in the declaration in effect charge the railroad company with negligence, in that it did not use due and proper care in maintaining this fill and its roadbed there in a safe and proper condition; did not make proper inspection and tests to ascertain its unsafe and dangerous condition; did not employ suitable and sufficient servants to keep and maintain it in such safe condition; furnished to decedent an unusually large, heavy, and unsuitable engine to operate his train upon the then known condition of roadbed; that with knowledge of the unsafe and dangerous condition of this fill and roadbed it neglected to inform Taylor thereof, as it could have done in time to avoid the accident, but, on the contrary, displayed the white signal to him at Letart, which directed him in effect to proceed with assurances of safety.

A demurrer to this declaration was entered and overruled by the court below, and the defendant entered a plea of not guilty; its defense being in effect a general denial of liability, an assertion of disobedience of orders by decedent, and contributory negligence and assumption of risk on his part.

A trial by jury was had, a verdict for $10,000 damages rendered, a motion to set aside which was made and overruled, numerous exceptions to rulings of the court and to instructions given and refused were taken, and the case is now here for review upon 22 assignments of error.

B. M. Ambler and J. W. Vandervort (Van Winkle & Ambler, on the brief), for plaintiff in error.

Lewis N. Tavenner (V. B. Archer, on the brief), for defendant in error.

Before GOFF and PRITCHARD, Circuit Judges, and ROSE, District Judge.

PRITCHARD Circuit Judge (after stating the facts as above).

As appears from the statement of facts, it is insisted by the defendant below: (a) That the evidence was not sufficient to sustain a verdict against the defendant; (b) that the decedent assumed the risk incident to his employment; (c) that his own negligence contributed to the cause of his death.

The first assignment of error relates to the refusal of the court below to direct a verdict in favor of the defendant. The general rule bearing upon this point is well stated in the case of Kreigh v. Westinghouse & Co., 214 U.S. 249, 29 Sup.Ct. 619, 53 L.Ed. 984. In that case the court, among other things, said:

'Questions of negligence do not become questions of law to be decided by a court, except 'where the facts are such that all reasonable men draw the same conclusion from them,' and the case is not to be withdrawn from the jury unless the conclusion follows as a matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish.'

The evidence in this case is such that reasonable men might reasonably differ as to the inferences to be drawn therefrom, and, under these circumstances, we do not deem it necessary to enter into an extended discussion of the facts at this juncture in determining this point, further than to say that a careful consideration of the same leads us to the conclusion that the refusal of the court below to direct a verdict in favor of the defendant was eminently proper.

The second assignment of error is as to instruction No. 2. In this instruction the court told the jury that it was the duty of the defendant company to exercise reasonable care and diligence to make and maintain its track and roadbed in a reasonably safe condition for the use of the engineer in running locomotives over it, and that if the jury believed from the evidence that the defendant company, its agents or servants, had neglected to keep its track, roadbed, and fill in a safe condition, and that by reason of such negligence on the part of the defendant company the plaintiff's decedent was killed by the derailment of his engine while at his post of duty, in the service of the railroad company, then in that event the defendant company would be guilty of such wrongful act, neglect, and default, and the plaintiff would be entitled to maintain her action, and that the jury should find for the plaintiff such damages as they might deem fair and just, not to exceed the sum of $10,000. court: Searle v. Railroad Company, 32 W.Va. 370, 9 S.E. 248; Long Pole Lumber Company v. Gross, 180 F. 7, 8, 103 C.C.A. 359; Turner v. Norfolk & Western Railway Company, 40 W.Va. 675, 22 S.E. 83; 3 Elliott on Railroads, Sec. 1297, p. 2046.

That portion of the instruction in which the court told the jury that the plaintiff would be entitled to recover such sum as they might deem fair and just, not exceeding the sum of $10,000, was based upon the law of the state of West Virginia. Code of West Virginia, c. 103, Secs. 5 and 6, read as follows:

'Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first degree, or manslaughter.'

'Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. In every such action the jury may give such damages as they shall deem fair and just, not exceeding ten thousand dollars.'

While the court instructed the jury that in no event would the plaintiff be entitled to recover a sum in excess of $10,000, yet the question as to the actual amount of damages the plaintiff was entitled to recover, under the pleadings and evidence, was properly left to the determination of the jury.

The third...