Dernberger v. Baltimore & O.R. Co.

• Decision Date: 17 May 1917
• Docket Number: 1474.
• Parties: DERNBERGER v. BALTIMORE & O.R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

243 F. 21

DERNBERGER v. BALTIMORE & O.R. CO.

No. 1474.

United States Court of Appeals, Fourth Circuit.

May 17, 1917

C. M Hanna and Reese Blizzard, both of Parkersburg, W.Va. (R. E Bills, of Parkersburg, W. Va., on the briefs), for plaintiff in error.

George M. Hoffheimer, of Clarksburg, W. Va., and B. M. Ambler, of Parkersburg, W.Va. (J. W. Vandervort and Van Winkle & Ambler all of Parkersburg, W. Va., on the briefs), for defendant in error.

E. G Smith and Stephen G. Jackson, both of Clarksburg, W. Va., amici curiae.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

This action was instituted in the District Court of the United States for the Northern District of West Virginia by Martha Dernberger, administratrix of Benjamin Dernberger, deceased, against the Baltimore & Ohio Railroad Company, to recover damages for alleged injuries sustained by Benjamin Dernberger at the hands of defendant in error, under chapter 103, section 3488, of the Code of West Virginia, which is in the following language:

'Whenever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action to recover damages in respect thereof; then, and in every such case, the person who, or the corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to murder in the first or second degree, or manslaughter.'

The case is now before us on a writ of error. The plaintiff in error will be referred to as plaintiff, and the defendant in error as defendant; such being the relative positions the parties occupied in the court below.

An action of this kind always presents points more or less difficult of solution, involving as it does primarily on the one hand the question as to whether the alleged injuries of the plaintiff were occasioned by the negligence of the railroad company, or whether on the other hand the plaintiff by his negligence contributed to his own injury to such an extent as to warrant the trial judge in holding as a matter of law that the defendant upon the whole evidence is entitled to have the court instruct the jury to return a verdict in its favor. So much has been written in regard to this question that it would be impractical to undertake to distinguish all the cases decided by the different courts of the several circuits, as well as the courts of last resort of the states, and relied upon by counsel for the respective parties. Therefore, we shall confine our discussion to what we deem to be some of the controlling cases.

Counsel for plaintiff's intestate have filed four briefs, counsel for defendant five, and counsel as amici curiae two. While the briefs thus filed are voluminous, we greatly appreciate the industry and skill displayed by counsel in attempting to throw as much light as possible upon a proposition which is extremely complicated when we come to apply the law to the facts as testified to by the witnesses in the court below. It is earnestly insisted by counsel for plaintiff that the court below erred in directing a verdict in favor of the defendant; in other words, that the death of plaintiff's intestate was due to the negligence of the defendant in failing to give a signal while approaching the crossing as required by the statute of West Virginia.

Counsel earnestly contend that the conflict of evidence in this case is such that the court below should have submitted the determination of the same to the jury. The rule is that, whenever the evidence is such that reasonable men may reasonably differ as to the inferences to be drawn therefrom, the case should be submitted to the jury. While this is true, it is well settled that where, from the evidence, only one inference may be reasonably drawn, it is the imperative duty of the court as a matter of law to direct a verdict. In other words, it is the duty of the trial court to direct a verdict for the plaintiff or defendant, as to the court may seem proper, where the evidence is uncontradicted, or of such conclusive character that the court, in the exercise of a sound judicial discretion, would feel impelled to set aside a verdict in opposition to it. Merchants' Bank v. State Bank, 10 Wall. (77 U.S.) 604, 19 L.Ed. 1008; Delaware, Lackawanna & Western Railroad Company v. Converse, 139 U.S. 469, 11 Sup.Ct. 569, 35 L.Ed. 213; Patton v. Texas & Pacific Railway Company, 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361; Southern Pacific Company v. Pool, 160 U.S. 438, 16 Sup.Ct. 338, 40 L.Ed. 485; Zilbersher v. Pennsylvania R. Co., 208 F. 280, 125 C.C.A. 480; Union Pacific Railway Company v. McDonald, 152 U.S. 262, 14 Sup.Ct. 619, 38 L.Ed. 434; Elliott v. Chicago, Milwaukee & St. Paul Railway Co., 150 U.S. 245, 14 Sup.Ct. 85, 37 L.Ed. 1068.

An examination of the cases cited will show that the court not only had the power, but it is its duty in cases like the one at bar, as well as all other cases involving a trial by jury, to direct a verdict whenever the facts are such as to warrant the same. Mr. Justice Swayne, in the case of Meguire v. Corwine, 101 U.S. 108, 25 L.Ed. 899, in referring to this point says:

'A judge has no right to submit a question where the state of the evidence forbids it.'

In the case of Southern Pacific Railway Company v. Pool, supra, Chief Justice White, who was then Associate Justice, among other things, said:

'There can be no doubt where evidence is conflicting that it is the province of the jury to determine, from such evidence, the proof which constitutes negligence. There is also no doubt, where the facts are undisputed or clearly preponderant, that the question of negligence is one of law. Union Pacific Railway Company v. McDonald, 152 U.S. 262, 283 (14 Sup.Ct. 619, 38 L.Ed. 434). The rule is thus announced in that case: 'Upon the question of negligence * * * the court may withdraw a case from the jury altogether, and direct a verdict for the plaintiff or the defendant, as the one or the other may be proper, where the evidence is undisputed, or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it. Delaware, Lackawanna, etc., Railroad v. Converse, 139 U.S. 469, 472 (11 Sup.Ct. 569, 35 L.Ed. 213), and authorities there cited; Elliott v. Chicago, Milwaukee & St. Paul Railway, 150 U.S. 245 (14 Sup.Ct. 85, 37 L.Ed. 1068); Anderson County Commissioners v. Beal, 113 U.S. 227, 241 (5 Sup.Ct. 433, 28 L.Ed. 966)."

This being the rule, the question arises as to whether the facts as established in the court below were such as to warrant the learned judge who heard this case in directing a verdict in favor of the defendant.

It is insisted by counsel for defendant that the evidence brings this case clearly within the rule announced in Neininger v. Cowan et al., 101 F. 787, 42 C.C.A. 20; Beyel v. Newport News & M.V.R. Co., 34 W.Va. 538, 12 S.E. 532; Horn v. Baltimore & O.R. Co., 54 F.

301, 4 C.C.A. 346; Chicago, M. & St. P. Ry. Co. v. Bennett, 181 F. 799, 104 C.C.A. 309; Shatto v. Erie R. Co., 121 F. 678, 59 C.C.A. 1; Northern Pac. Ry. Co. v. Alderson et ux., 199 F. 735, 118 C.C.A. 173; Southern Ry. Co. v. Carroll, 138 F. 639, 71 C.C.A. 88; Railroad Co. v. Houston, 95 U.S. 697, 24 L.Ed. 542. Counsel also cite numerous other cases. The plaintiff's intestate relies upon the cases of Continental Improvement Company v. Stead, 95 U.S. 161, 24 L.Ed. 403; Grand Trunk Railway Company v. Ives, 144 U.S. 408, 12 Sup.Ct. 679, 36 L.Ed. 485; Flannelly v. Delaware & Hudson Co., 225 U.S. 597, 32 Sup.Ct. 783, 56 L.Ed. 1221, 44 L.R.A. (N.S.) 154; Baltimore & Ohio Railroad Company v. Griffith, 159 U.S. 603, 16 Sup.Ct. 105, 40 L.Ed. 274; Lehigh Valley R. Co. v. Kilmer, 231 F. 628, 145 C.C.A. 514; Morrissey v. Boston & L.R.R. Co., 216 Mass. 5, 102 N.E. 924; City of Elkins v. Western Maryland Co., 86 S.E. 762; and numerous other cases.

The danger incident to a crossing is increased or diminished according to the nature of the land on either side of the road over which one must travel to reach the same. Where the banks are level, and the intervening space between the road and the railroad consists of cleared land, the risk is less; but where, as in this instance, it appears that there is a heavy growth of weeds, underbrush, etc., so as to obscure the view of the track beyond the crossing in the direction from whence the train comes, the risk is correspondingly increased. Such condition is a warning to the traveler of the imminence of danger, and in the nature of an admonition to exercise reasonable caution in approaching a railroad track; also, the means of transportation employed by the traveler becomes an important factor in determining the degree of diligence to be exercised. These are questions that are important, and must be considered by the court in a case like the one at bar, in determining whether the negligence of the deceased was the proximate cause of his injury.

In this instance the deceased, a farmer, had lived in the vicinity of the crossing where the accident occurred for many years, and it is but fair to assume that he was familiar with the location of the track at the point of crossing, and was also familiar with the approach thereto. Under these circumstances, he must have been fully cognizant of the risks incident to crossing at this point, and, as a matter of common knowledge, he must have known that the railroad company operated over its tracks heavy freight trains incapable of being...