Dean v. Southern Railway Company

• Decision Date: 15 February 1964
• Docket Number: No. 15259.,15259.
• Citation: 327 F.2d 757
• Parties: Geraldine Gilbert DEAN, Administratrix of the Estate of Oscar Lee Dean, Deceased, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY and Anthony Raines, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

327 F.2d 757 (1964)

Geraldine Gilbert DEAN, Administratrix of the Estate of Oscar Lee Dean, Deceased, Plaintiff-Appellee, v. SOUTHERN RAILWAY COMPANY and Anthony Raines, Defendants-Appellants.

No. 15259.

United States Court of Appeals Sixth Circuit.

February 15, 1964.

Robert T. Winston, Jr., Norton, Va., and Harry N. Fortune, Johnson City, Tenn., Greear, Bowen, Mullins & Winston, Norton, Va., Simmonds, Bowman & Herndon, Johnson City, Tenn., on brief, for defendants-appellants.

John F. Dugger, Morristown, Tenn., H. M. Bacon, Morristown, Tenn., on brief; Bacon & Dugger, Morristown, Tenn., of counsel, for plaintiff-appellee.

Before CECIL, Chief Judge, MILLER, Circuit Judge, and DARR, Senior District Judge.

DARR, Senior District Judge.

This appeal is from a judgment for $18,000 entered on the verdict of a jury against Southern Railway Company and its engineer, Anthony Raines, for the alleged negligent death of Oscar Lee Dean as a result of a collision between Mr. Dean's truck and a train of defendant company at a public highway crossing in a rural area in Lee County, Virginia. The public highway is known as U.S. Highway 23. The parties will be hereinafter referred to as plaintiff and defendants as they stood in the trial court unless otherwise indicated.

Plaintiff's intestate, her husband, Mr. Dean, was an employee of the Burnett Poultry Company of Morristown, Tennessee, his job being to deliver by truck his employer's merchandise to points in Eastern Kentucky. His regular route took him to Harlan, Hazard, Neon, Whitesburg and Cumberland, Kentucky from Morristown, Tennessee.

Mr. Dean, in his regular schedule of work, was not to make a trip on March 28, 1961, but there being a special order from a customer in Neon, Kentucky, he left Morristown on that date about 1 a. m. to make the delivery. While en route to make the special delivery and about 3:40 a. m. the accident happened which resulted in his death. Mr. Dean was driving north on U. S. Highway 23 and defendant company's train was traveling toward the west at and just before the time of the collision.¹ Therefore, the left side of the train was toward Mr. Dean's truck as it approached the crossing and Mr. Dean would have had to look to his right to observe the approaching train. The highway was practically level in the vicinity of the crossing and was straight for some one-half mile south of the crossing. The highway consisted of two lanes of traffic, one for southbound vehicles and the other for northbound. The defendant company has only one track going over the grade crossing. Before reaching the crossing and at the crossing there is a slight curve in the railroad track and it is downgrade. At the crossing the north rail was slightly higher than the south rail, indicating that the bend of the curve was to the north.

The grade crossing where the accident occurred is known as Harvey's Crossing and, as heretofore stated, is situated in Lee County, Virginia. Therefore, the law of Virginia controls the substantive question of liability.

One charge of negligence that plaintiff claims was the cause of the death of her husband is the allegation that the whistle horn was not blown or the bell rung as the train approached the crossing in compliance with the Virginia statute, Code section 56-414. This section of the Code provides:

"Every railroad company shall provide each locomotive or Diesel engine passing upon its road with a bell of ordinary size and steam whistle, or horn, and such whistle or horn shall be sharply sounded outside of incorporated cities and towns at least twice at a distance of not less than three hundred yards nor more than six hundred yards from the place where the railroad crosses upon the same level any public highway or crossing, and such bell shall be rung or whistle or horn sounded continuously or alternately until the engine has reached such highway crossing, and shall give such signals in cities and towns as the legislative authorities thereof may require."

To carry the burden of proof on the bell and whistle statute, the plaintiff introduced only two witnesses, Mr. and Mrs. Jessee. The Jessees lived in the back of their filling station, which is situated, according to Mrs. Jessee, about 250 feet south of the grade crossing² and about 75 feet east of U. S. Highway 23. She testified that she had a sick baby and was up with it about 3:00 o'clock in the morning of the accident and had gone back to bed and that she was not sure whether she had fallen asleep when she heard the noise of the collision. She was asked:

"Q. Mrs. Jessee, did you ever hear a whistle or a bell blow before you heard the noise that you told us about?

"A. No, sir, I never."

This is the entire testimony of Mrs. Jessee as to the sounding of the whistle and ringing of the bell.

Mr. Arthur Jessee said that he did not hear any whistle blow or bells ring. He was asked if, after he woke up, he heard any whistle blow or bells ring and his answer was:

"No, sir, I didn\'t. Well, not knowing — something stirred me. I don\'t know whether it was that. It was bound to have been that. I won\'t say for sure. I wasn\'t what you would say plumb asleep. Anyhow, I was disturbed."

On cross examination he further said:

"Q. Mr. Jessee, you were in bed asleep when the accident happened?

"A. Yes, I said I was in bed asleep.

"Q. And your wife woke you up?

"A. Yes. It was that collision or something. Anyhow, she spoke to me. Told me —".

The vague and indefinite testimony of both Mr. and Mrs. Jessee scarcely reaches any area of evidence but, if so, it is clearly negative testimony. Under Virginia law and generally, purely negative evidence has no probative value as against the positive testimony of credible witnesses. Southern Ry. Co. v. Barden, 200 Va. 98, 104 S.E.2d 13; Norfolk & Portsmouth Belt L. R. Co. v. C. F. Mueller Co., 197 Va. 533, 90 S.E. 2d 135; Atlantic Coast Line R. Co. v. Bowen, 192 Va. 162, 63 S.E.2d 804.

The defendants introduced evidence of a positive nature. The defendant, Anthony Raines, the engineer, testified that he turned the automatic bell on and started blowing the whistle at the whistle board; that he blew one long, another long, a short and a long; that the whistle was blowing up to the time the fireman hollered to him to put on the emergency brake; that the bell was ringing all the way through and was still ringing when the train stopped after the accident.

The fireman on the engine, R. L. Leonard, testified that the engineer blew the whistle at the whistle board and that the bell was turned on. He further testified that the engineer blew the whistle from the time he got to the whistle board until the time he got to the crossing, or until he shouted to him to put on the emergency brake. Also, he said the bell was still ringing when the train stopped.

Albert Huff, the head brakeman, testified that he was riding on the rear unit of a five unit diesel engine; that while the train was running it was his duty to look back and "watch for hot boxes and broke journals" on the moving train, and he was so doing at the time of the collision; that the first time he had any knowledge that something was wrong was when he heard the air go in emergency; that he did not see the collision; and he testified that before the collision he heard the whistle blowing but that he was too far back to hear the bell.

Clyde Caldwell, a witness for the defendants, testified that he lived about 400 yards from Harvey's Crossing. He stated that he worked at a dairy and got up at 4:00 o'clock in the morning; that on the morning of the accident, and before his alarm clock went off at 4:00 o'clock, he heard the train blowing its whistle and heard the impact of the collision.

R. B. Rust, a witness for the defendants, testified that the distance from the whistle board to the crossing, in the direction that the train was traveling, measured 1790 feet to the near edge of the crossing and approximately 1810 feet to the center of the crossing.

An analysis of the evidence, as outlined above, and the applicable law result in the conclusion that the plaintiff offered no credible evidence to establish that the bell and whistle statute Virginia Code, section 56-414 was not observed on the occasion of the collision causing the death of Oscar Lee Dean. But, on the other hand, the only credible evidence is that the horn was sounded more than twice and that the bell rang continuously from the whistle board until the train reached the crossing, in full compliance with the statute.

A second cause of action, or a charge of actionable negligence, put forth by the plaintiff is that the defendants failed in their duty to the deceased in the operation of the train as required by the common law.

The duty of the defendant company, under the common law as recognized in Virginia, is stated as follows:

"The sole duty of a railroad company with respect to warnings at a crossing, is to give an approaching motorist who, himself, is exercising due care for his own safety, a reasonable and timely warning of the approach of a train." Norfolk and Western Railway Co. v. Sykes, 200 Va. 541, 106 S.E.2d 734, 740.

It has been pointed out heretofore that the undisputed proof reveals that just prior to the collision, when some 600 yards from the crossing, the horn of the diesel engine began blowing and blew one long, another long, a short and a long whistle and that the bell was continually ringing from the whistle board until after the time of the collision.

A Virginia case sustains the proposition that it is a matter of common knowledge that the loud horn of a diesel and the continued ringing of a bell can be heard by travelers possessing average hearing and that travelers usually heed such warnings. The horn on a diesel engine is penetrating and can be heard for long distances. Danville & W. Ry. Co. v. Chattin, 192 Va. 216, 64 S.E.2d 748, 751.

In addition a standard headlight was burning, throwing light down the...