Bennett v. Washington Terminal Co.

• Decision Date: 01 December 1924
• Docket Number: No. 4092.,4092.
• Citation: 2 F.2d 913,55 App. DC 111
• Parties: BENNETT v. WASHINGTON TERMINAL CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

55 App. DC 111, 2 F.2d 913 (1924)

BENNETT v. WASHINGTON TERMINAL CO.

No. 4092.

Court of Appeals of District of Columbia.

Submitted November 6, 1924.

Decided December 1, 1924.

G. A. Maddox and W. G. Gardiner, both of Washington, D. C., for appellant.

G. E. Hamilton, J. J. Hamilton, G. E. Hamilton, Jr., Edmund Brady, and H. R. Gower, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, VAN ORSDEL, Associate Justice, and BARBER, Judge of the United States Court of Customs Appeals.

VAN ORSDEL, Associate Justice.

Appellant, as administratrix of the estate of her husband, Roger D. Bennett, deceased, sued the Washington Terminal Company for damages resulting from the death of the decedent on December 23, 1922. Decedent was employed by the terminal company as an electrician, and assigned to car-lighting work in the terminal yards at the Union Station in this District. When plaintiff had submitted her testimony in chief, counsel for defendant moved for a directed verdict on the ground that plaintiff had failed to sustain the burden of proving any negligence on the part of defendant company, or that the defendant's negligence, if there was any such, was the proximate cause of decedent's death. The court sustained the motion, and a verdict was directed. From the judgment thereon, this appeal is prosecuted.

The facts, as detailed by a witness named Arnold, most favorable to the plaintiff's case, and which should be considered in view of the directed verdict, are substantially that on the night of the accident, about 12:10 a. m., the witness was walking north from the depot on the platform between tracks 15 and 16, and noticed Bennett about 30 yards in advance of him, walking in the same direction on the platform between tracks 16 and 17. These platforms are for the convenience of passengers in alighting from and boarding trains. The witness testified that Bennett walked north 40 or 50 yards beyond the end of the Union Station shed, when he stepped off of the platform on which he was walking and moved in the direction from northwest to southeast across the tracks. When witness last saw Bennett he was crossing track 18, on which a Pennsylvania train not operated by defendant company, was backing north out of the Union Station. Bennett then had his foot on the last rail of track 18, going towards track 19. Tracks 18 and 19 are parallel and about 6 feet apart. At this moment, witness testified, the train came between him and Bennett and obstructed his view. The train was making a loud noise, and was about 20 or 25 feet from Bennett, moving at a speed of about 15 miles per hour.

At the same time witness observed a shifting engine backing south towards the depot on track 19. It was then about 35 yards north of where Bennett was crossing, and moving at about 15 miles an hour. The Pennsylvania train kept north, and, when it had passed, witness noticed the shifting engine standing on track 19 south of the point where Bennett crossed. Witness had turned back towards the station. His attention was attracted to some of the engine crew gathering on track 19, a short distance south of the point where he saw Bennett cross track 18. He went down and saw Bennett's body lying on the outside of the first rail of track 19. It was in a mangled condition; but he did not notice whether any portion of the body was lying between the rails of track 19. From the evidence of other witnesses, however, it appears that portions of Bennett's body were between the rails of track 19. Unquestionably the shifting engine passed over his body on the west rail of the track. The witness Arnold is contradicted in many particulars as to distances, rate of movement of trains, relative locations of trains, etc.; but, inasmuch as his evidence is most favorable to the plaintiff, it should be considered as furnishing a possible basis for submitting the case to the consideration of the jury.

Is this evidence sufficient to warrant the court in sending the case to the jury? We think not. Before contributory negligence or last clear chance can be considered, there must be sufficient evidence to warrant the jury in finding that the terminal company was guilty of negligence. The employees of the terminal company on the shifting engine testified that they were keeping a lookout ahead for objects on the tracks and...