Davis Frozen Foods v. Norfolk Southern Ry. Co., 6555.

• Citation: 204 F.2d 839
• Decision Date: 28 May 1953
• Docket Number: No. 6555.,6555.
• Parties: DAVIS FROZEN FOODS, Inc. v. NORFOLK SOUTHERN RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

204 F.2d 839 (1953)

DAVIS FROZEN FOODS, Inc. v. NORFOLK SOUTHERN RY. CO.

No. 6555.

United States Court of Appeals Fourth Circuit.

Argued April 8, 1953.

Decided May 28, 1953.

Franklin T. Dupree, Jr., and Murray Allen, Raleigh, N. C. (Archibald Craige, Winston-Salem, N. C., on brief), for appellant.

John M. Simms and Robert N. Simms, Jr., Raleigh, N. C. (Robert N. Simms, Raleigh, N. C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is the second appeal in the action brought by the Norfolk Southern Railway Company to recover damages sustained as the result of a truck's colliding with a trestle bridging the underpass of a state highway at Bailey, North Carolina, and dislocating plaintiff's railroad track and thereby causing the wreck of one of its freight trains. On the former appeal we held that there was error in not directing a verdict for plaintiff on the issue as to whether the dislocation of the track was caused by the negligence of the driver of the truck but that there was evidence for the consideration of the jury on issues directed to the contributory negligence of plaintiff in failing to maintain adequate warning signs and in failing to operate its train so as to avoid the wreck. Norfolk Southern Ry. Co. v. Davis Frozen Foods, 4 Cir., 195 F.2d 662. On the new trial had in accordance with our mandate, the trial judge directed a verdict in favor of plaintiff on the issue relating to the negligence of defendant in causing the dislocation of the track, and the jury, in answer to specific issues submitted to them, exonerated the plaintiff of negligence with respect to the maintenance of warning signs and the operation of its train. From a judgment on the verdict, which awarded damages to plaintiff, the defendant has appealed.

Defendant's principal contention is that there was error on the part of the trial court in directing verdict for plaintiff on the issue as to whether the damage sustained by plaintiff was caused by the negligence of the defendant. This issue was limited by the trial judge in his charge upon the second trial, just as it was limited in the first, to the question as to whether the dislocation of plaintiff's track was caused by the negligence of the driver of defendant's truck; and as there was no substantial difference in the evidence bearing upon the issue in the two trials, it was the duty of the judge, in application of the law of the case, to direct a verdict for plaintiff, since we had held that it was error not to direct a verdict for plaintiff on such evidence in the first trial. Thompson v. Maxwell Land Grant Co., 168 U.S. 451, 456, 18 S.Ct. 121, 42 L.Ed. 539; Atlantic Coast Line R. Co. v. Chance, 4 Cir., 198 F.2d 549, certiorari denied 344 U.S. 877, 73 S.Ct. 172; Wyant v. U. S. Fidelity & Guaranty Co., 4 Cir., 116 F.2d 83, certiorari denied Wyant v. Caldwell, 314 U.S. 610, 62 S.Ct. 57, 86 L. Ed. 490; Maryland Casualty Co. v. City of South Norfok, 4 Cir., 54 F.2d 1032, certiorari denied 286 U.S. 562, 52 S.Ct. 644, 76 L.Ed. 1295; Dodd v. Union Indemnity Co., 4 Cir., 32 F.2d 512.

Defendant argues that there was a difference in the testimony on the two trials; but we think that there was no substantial difference. The driver of the truck softened somewhat his testimony to the effect that he was not thinking when he ran his truck against the trestle; but he admitted that he was familiar with the underpass and did not "realize" that he was driving a larger truck than he was accustomed to driving until too late to avoid running against the trestle. That such inattention to what he was doing was negligence is too clear for argument. The witness Stone, who did not testify on the first trial, gave evidence that the engine turned over after it had crossed the trestle, and that the cars seemed to go down in a hole; but there was nothing in this to negative the fact that the derailment occurred as established by the evidence on the first trial, and the witness admitted that what he saw might have resulted from the engine and cars getting off the track as they crossed the trestle. The witness Warrenfels testified on the second trial that a sudden change of temperature might cause the buckling of rails, if there was no proper chine left between their ends; but there was no evidence of any sudden change of temperature or anything else, other than the collision of...