Belt v. St. Louis-San Francisco Ry. Co.

• Decision Date: 20 March 1952
• Docket Number: No. 4361.,4361.
• Citation: 195 F.2d 241
• Parties: BELT v. ST. LOUIS-SAN FRANCISCO RY. CO.
• Court: U.S. Court of Appeals — Tenth Circuit

195 F.2d 241 (1952)

BELT v. ST. LOUIS-SAN FRANCISCO RY. CO.

No. 4361.

United States Court of Appeals Tenth Circuit.

February 23, 1952.

Rehearing Denied March 20, 1952.

Roy Paul, Durant, Okl., for appellant.

Ben Franklin, Oklahoma City, Okl. (Satterfield, Franklin & Harmon, Oklahoma City, Okl., and E. G. Nahler, St. Louis, Mo., on the brief), for appellee.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

MURRAH, Circuit Judge.

M. Lee Belt, individually and as administratrix of the estate of her deceased husband, Alvin R. Belt, brought this action in the District Court of Bryan County, Oklahoma, against the St. Louis-San Francisco Railway Company to recover damages for injuries to, and resulting death of, her husband, allegedly caused by the negligent acts of the Railway Company in the operation of its trains.

The complaint sets out two separate and distinct acts of negligence. First, it is alleged that while the deceased was fishing from a bridge of the defendant, a passing train of the company carelessly and negligently struck him, causing serious injuries and excruciating pain; and second, that shortly after the deceased had been injured and while lying prostrate on the bridge immediately adjacent to the track, a second train was moved past the deceased, causing "shock and excruciating pain." Plaintiff alleges that the negligence of the defendant in the operation of both trains was the proximate cause of the injuries and resulting death of the deceased, and prayed that the estate of the deceased be awarded damages in the sum of $30,000 for pain and suffering, together with costs of hospital and funeral expenses in the sum of $900.80; and that she, individually, be awarded damages in the sum of $73,800.00 for the wrongful death of her husband.

The cause was removed to the United States District Court for the Eastern District of Oklahoma because of diversity of citizenship and requisite amount in controversy. By answer, the Railroad Company admitted the injury to, and death of, the plaintiff's decedent, but denied any act of negligence on its part and pleaded primary and contributory negligence on the part of the decedent.

Overruling a motion of the defendant for a directed verdict, the trial court submitted the case to the jury, painstakingly instructing it that two separate and distinct acts of negligence were in issue. One, the negligence of the Railroad Company in the operation of the passenger train which first struck the decedent; and, two, the operation of its freight train across the bridge a short time later. The jury was instructed that if it found that the defendant was guilty of negligence in the operation of either train and that such negligence was the proximate cause of decedent's injuries and subsequent death, it could award two items of damages, one for the pain and suffering of the decedent and the other for his wrongful death; and, that it should, if it found for the plaintiff, separate the item of damages awarded in its form of verdict.

By answer to special interrogatories, the jury found that the defendant railroad was negligent in the operation of its first train which struck the decedent and that the decedent was guilty of contributory negligence. But, a general verdict was returned in favor of the plaintiff, awarding damages in the sum of $5,000 for "pain and suffering" and $900.00 for hospital and funeral expenses. Thereafter, on motion of the defendant, the court entered judgment for the defendant Railway Company notwithstanding the jury's verdict, and plaintiff has appealed.

It is clear from the answer to the interrogatories and the court's instructions, that the jury's verdict is based solely upon the negligence of the appellee railroad in moving its second train past the deceased after he was injured.

In presenting its motion for a directed verdict, the appellee contended, and the trial court was apparently of the view, that the jury's verdict should be set aside on the grounds that there was insufficient evidence to show a proximate causal connection between the death of the decedent and the moving of the second train.

The attending physician who testified on trial concerning the extent of decedent's injuries and the cause of death was unable to say with any degree of certainty or probability that the negligent passing of the second train contributed to his death. It may be conceded, therefore, that under Cohenour v. Smart, Okl., 240 P.2d 91, the evidence is insufficient to support an award of damages for the alleged wrongful death of the decedent. See also Annotation in 134 A.L.R. 516. But, the damages awarded were not for the wrongful death of the decedent. Indeed by its verdict the jury necessarily found that death did not result from the second negligent act. The verdict was expressly limited to damages for "pain and suffering," a compensable wrong, separate and distinct from the claim for wrongful death. See Deep Rock Oil Corporation v. Sheridan, 10 Cir., 173 F.2d 186; ...