Bryson v. Hines

• Decision Date: 12 July 1920
• Docket Number: 1790.
• Parties: BRYSON et al. v. HINES, Director General of Railroads, et al.
• Court: U.S. Court of Appeals — Fourth Circuit

268 F. 290

BRYSON et al. v. HINES, Director General of Railroads, et al.

No. 1790.

United States Court of Appeals, Fourth Circuit.

July 12, 1920

Zeb F Curtis, of Asheville, N.C., D. W. Robinson, of Columbia S.C., and James J. Britt, of Asheville, N.C. (Harkins & Van Winkle, of Asheville, N.C., on the brief), for plaintiffs in error.

P. A Willcox, of McRae, Ga., A. L. Hardee, of Wilmington, N.C., and Thomas S. Rollins, of Asheville, N.C. (Charles F. Patterson, of Washington, D.C., and Martin, Rollins & Wright, of Asheville, N.C., on the brief), for defendants in error.

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

WOODS Circuit Judge.

On May 10, 1918, Walter C. Bryson and Philetus C. Swann, soldiers of Company A, 321st Regiment of Infantry, were killed in Camp Jackson Military Reservation by derailment of a train on which they were being transported under military orders. In separate actions for damages, tried together by consent, their administrators charge that the proximate cause of the derailment was negligence of the Atlantic Coast Line Railroad Company and the Director General of Railroads.

There was abundant evidence of acts of negligence alleged in the complaints, but the District Court directed a verdict for the defendants; one of the grounds being that the right of recovery against the railroad company and the Director General for the injury or death of a soldier had been supplanted and taken away by the following circular:

'United States Railroad Administration, Division of Law.

'Washington, October 25, 1918.

'Circular No. 4.

'Attention is directed to the act of Congress entitled 'An act to amend an act entitled 'An act to authorize the establishment of a Bureau War Risk Insurance in the Treasury Department," approved September 2, 1914, and for other purposes, approved October 6, 1917, Public Document No. 90, Sixty-Fifth Congress (H.R. 5723).

'This act establishes a system for compensating officers and enlisted men and women nurses of the Army and Navy Nurse Corps, when employed in active service under the War or Navy Departments of the Government.

'In case of railroad accidents, in order to avoid confusion and to effectuate a proper and uniform handling of the compensation claims of such injured and disabled persons who are entitled to receive compensation under the War Risk Act, upon the happening of any accident causing death, disablement or of injury to any officer, enlisted man, or member of the Army or Navy Nurse Corps (female) occurring on any line of railroad under federal control, the General Solicitor will immediately notify J. H. Howard, Manager, Claims and Property Protection Section, Division of Law, Southern Railroad Building, Washington, D.C., giving the name and emergency address of the dead or injured person, his or her number, rank, and routing, and in the case of injured persons, his or her present address.

'Such injured officers and enlisted men and members of the Army and Navy Nurse Corps (female) will be remitted to their claim for compensation through the War Risk Bureau and will not receive any payment through the Railroad Administration.

'No claim for damages for injuries occasioning death or disablement of such persons should be recognized or entertained. The circumstances surrounding accidents should be investigated as heretofore and report filed.

'The General Solicitor will notify general claim agents of this circular who will in turn notify all claim agents.

'John Barton Payne, General Counsel.

'Approved: W. G. McAdoo, Director General of Railroads.' We first give attention to the effort of defendants' counsel to sustain the instruction that no negligence was proved which can be imputed to either of the defendants.

Atlantic Coast Line Railroad Company constructed the road from Simm's Station on its line into Camp Jackson. The sole purpose of construction was the transportation of troops and supplies and munitions for the construction and maintenance of the camp. The Southern and Seaboard Railroads paid part of the cost, under bills rendered by the Coast Line. This construction was completed before the Director General took charge of railroads under the President's proclamation of December 26, 1917. The portion of road which was inside the limits of Camp Jackson, on which the accident occurred, was acquired by the government, either by purchase from the Atlantic Coast Line Railroad Company or under a contract with that railroad company for its construction as a part of the reservation. On demand for cars by the military authorities, they were carried into the reservation and brought out by an engine of the Coast Line in charge of one of its engineers. Within the reservation the arrangement of the cars on the track and the entrainment of troops were under exclusive control of the military officers in charge. The maintenance and repair of the track was in exclusive control of the War Department.

The evidence tended strongly to show that the accident was due chiefly to the negligent construction by the Coast Line of a grossly and obviously unsafe track, and the negligence of the government in accepting the track and in failing to make it safe after acquiring it. Col. Frank, quartermaster, testifying to the cause of the accident, said:

'I attribute it to the light class of rail that was put in there and accepted by the quartermaster whom I relieved. I never would have accepted the track, if I had been the quartermaster when it was constructed. After the accident, I examined the track and found it badly torn up-- a rail broken, a few angle bars broken, a few spikes cut off. From my examination as to the cause of the accident, I would say poor construction. I know a little bit about engineering, and I think it is about the poorest piece of railroad construction I ever saw in my life. The trestle was built on a grade with an acute curve. That is why I asked for heavier rails, trying to make it safe. I also needed tie plates, angle bars, and angle braces. About six weeks before the accident, I had removed practically all of the ties at that place, one at a time, by the railroad crew, and put them back in, putting as many as five or six

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