Boston and Maine Railroad v. Talbert, 6651.

• Decision Date: 04 May 1966
• Docket Number: No. 6651.,6651.
• Parties: BOSTON AND MAINE RAILROAD, Defendant, Appellant, v. Isabelle C. TALBERT, Administratrix, Plaintiff, Appellee.
• Court: U.S. Court of Appeals — First Circuit

360 F.2d 286 (1966)

BOSTON AND MAINE RAILROAD, Defendant, Appellant, v. Isabelle C. TALBERT, Administratrix, Plaintiff, Appellee.

No. 6651.

United States Court of Appeals First Circuit.

Heard April 4, 1966.

Decided May 4, 1966.

E. Paul Kelly, Nashua, N. H., with whom Sheehan, Phinney, Bass & Green, Manchester, N. H., was on brief, for appellant.

John H. Sanders, Concord, N. H., with whom Gilbert Upton and Upton, Sanders & Upton, Concord, N. H., were on brief, for appellee.

Before ALDRICH, Chief Judge, and McENTEE and COFFIN, Circuit Judges.

McENTEE, Circuit Judge.

This is an action to recover damages under the Federal Employers' Liability Act¹ for injuries and death sustained by plaintiff's husband, Vaughan C. Talbert, as the result of a collision between defendant's Buddliner² on which Talbert was the conductor, and a one ton truck carrying tanks of propane gas, owned and operated by one Robert Wrenn. The accident occurred on the morning of December 7, 1960 at the Hills Ferry Road grade crossing in Nashua, New Hampshire. The Buddliner was travelling southerly on its way to Boston. Wrenn was going in a westerly direction over this grade crossing. Talbert was standing on the left side of the engineer's cab filling out his records when the collision occurred. He was pinned on the floor of the cab with both legs crushed. He also received severe burns when a propane gas tank which had become lodged in the cab caught fire and exploded. He was removed from the cab some ten or fifteen minutes after the collision and taken to the hospital in Nashua where he died some three hours later.

After an extended trial the jury returned a verdict for the plaintiff in the sum of $113,780.50. The case comes to us on the appeal of the railroad from the district court's denial of its motions for judgment notwithstanding the verdict, new trial and for a remittitur.

Under the statute upon which liability is predicated here³ plaintiff must show that the injury and death of this employee resulted in whole or in part from the negligence of the defendant railroad. In New York, New Haven and Hartford Railroad Co. v. Dox, 249 F.2d 572 (1st Cir. 1957), we held that the plaintiff has the burden of proving negligence and proximate cause. However, in reviewing the jury's verdict on the question of liability we must be guided by the principles laid down in Rogers v. Missouri Pacific R. Co., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957), a Federal Employer's Liability Act case, in which the Supreme Court said:

"Under this statute the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought. It does not matter that, from the evidence, the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee\'s contributory negligence. Judicial appraisal of the proofs to determine whether a jury question is presented is narrowly limited to the single inquiry whether, with reason, the conclusion may be drawn that negligence of the employer played any part at all in the injury or death." (Footnotes omitted)

The negligence upon which plaintiff relies is that the railroad failed to maintain a reasonably safe crossing and hence negligently failed to provide plaintiff's husband with a reasonably safe place to work.

Hills Ferry Road is a two lane public highway about seventeen feet in width which is surfaced with a bituminous material to the west and for a short distance to the east of the grade crossing in question. It runs easterly from U. S. Route 3 over this crossing to the Merrimac River. The railroad tracks run north and south and Hills Ferry Road intersects them at right angles. There are three tracks. The north bound one is in the middle. On the east is a spur track which services the nearby Koppers Company plant, and the south bound track, on which this accident occurred, is on the far westerly side of the crossing. The only warning devices were an advance warning disc⁴ and the traditional cross buck, both of which were on the westerly approach to the crossing. The cross buck is located about one hundred feet west of the crossing on the northerly side of Hills Ferry Road. It is mounted on a pole about ten feet high and reads: "Railroad Crossing." Just below it on the same pole is a sign which reads: "3 tracks." The warning disc was located somewhat further west on Hills Ferry Road. The tracks are part of the defendant's main Montreal-Boston line. At the time of the accident fourteen passenger trains and an occasional freight were going through this crossing every week day. In addition, a Nashua yard train used it several times a week to service the Koppers Company. There is evidence that a considerable amount of vehicular traffic passes east and west through this grade crossing.

Wrenn, the owner and operator of the ill-fated truck, was familiar with the crossing. There was evidence that he had used it about two hundred times in the five years prior to the accident to make deliveries of propane gas to the Koppers Company plant.⁵ On the morning of December 7, 1960, Wrenn was proceeding southerly along Koppers Road towards Hills Ferry Road after making his second delivery to Koppers that morning. With him, seated to his right, were his wife and their two small children. The truck was travelling fifteen to twenty-five miles an hour. Due to the construction of the truck, his rear view was blinded. There was a Koppers Company switcher engine on the gondola track to which a box car was attached. This obstructed Wrenn's view of the defendant's tracks. Defendant's Buddliner approached the grade crossing at a speed of seventy miles an hour. It was blowing its whistle in long and short blasts as required by railroad regulations. The Koppers Company switcher was also sounding its whistle up to the time of the collision.

The evidence indicates that the truck's speed remained constant right up to the Koppers Road exit, where, without stopping, it made a right angle turn on to the grade crossing. The engineer on the Buddliner testified that he first saw the truck proceeding down Koppers Road when the train was about 850 feet north of the crossing. It disappeared from his view momentarily behind the Koppers switcher and box car but reappeared as it proceeded to make a right turn from Koppers Road into Hills Ferry Road about twenty-five feet from the crossing. At that time the Buddliner was 150-160 feet from the crossing and the engineer expected Wrenn to stop. When the Budd was about fifty feet from the crossing the engineer first realized that the truck was not going to stop. He applied his emergency air brakes which took effect almost instantly but was unable to avoid the collision.⁶

We cannot say that Wrenn's negligence was the sole cause of this collision as claimed by the defendant. There was ample evidence from which the jury could find with reason that the defendant was negligent in failing to maintain a reasonably safe grade crossing under the conditions that existed here and that this was a contributing cause of the accident. The evidence shows that this crossing was used by trucks and trailers hauling heavy materials; that there were two side roads which intersected Hills Ferry Road a very short distance east of this crossing;⁷ that the view of defendant's tracks from Koppers Road which ran almost parallel with these tracks was frequently obstructed by the Koppers switcher moving up and down the spur and gondola tracks and that this road abruptly intersected Hills Ferry Road some twenty-five or thirty feet east of the crossing. South bound trains came through this intersection daily at an admitted speed of seventy miles per hour with only an advance warning disc and a cross buck, neither of which were located near enough the easterly side of the track to effectively warn on-coming traffic of the danger. In addition to the aforegoing, there was evidence that the inherent danger of this crossing was well known to the railroad for several years, and yet it did nothing to eliminate or minimize this danger. Prior to this accident there had been discussions between Koppers and the defendant with reference to installing flasher lights at this crossing but this never materialized because the defendant refused to contribute to the cost of providing them.⁸

It seems to us that under these circumstances the jury was justified in finding that the defendant did not maintain a reasonably safe crossing and...