Grand Trunk Western Ry. Co. v. Heatlie

• Decision Date: 15 April 1931
• Docket Number: No. 5762-5764.,5762-5764.
• Citation: 48 F.2d 759
• Parties: GRAND TRUNK WESTERN RY. CO. v. HEATLIE. SAME v. DREW. SAME v. WHITE.
• Court: U.S. Court of Appeals — Sixth Circuit

48 F.2d 759 (1931)

GRAND TRUNK WESTERN RY. CO. v. HEATLIE.

SAME v. DREW.

SAME v. WHITE.

Nos. 5762-5764.

Circuit Court of Appeals, Sixth Circuit.

April 15, 1931.

F. T. Harward and Victor Spike, both of Detroit, Mich. (Gilbert W. Hand, of Bay City, Mich., on the brief), for appellant.

T. J. Bresnahan and E. H. Groefsema, both of Detroit, Mich., for appellees.

Before DENISON, MOORMAN, and HICKENLOOPER, Circuit Judges.

MOORMAN, Circuit Judge.

These suits were heard together in the court below and were argued together in this court. They were brought to recover damages under the Federal Employers' Liability Act (45 USCA §§ 51-59) for injuries to James White and for the deaths of Ernest Drew and Walter Heatlie, occurring in a collision of two of appellant's east-bound freight trains at the village of Morrice, Mich. Drew was engineer, Heatlie fireman, and White a brakeman on train 484 which left Battle Creek for Durand on the morning of the day of the collision. At Bellevue, 13 miles east of Battle Creek, the crew received an order to let train 486, a train of the same class, which had left Battle Creek later in the morning, pass, and then proceed. This was done. At Lansing, 31 miles east of Bellevue, train 486 took coal, leaving the coal dock to proceed on its run at 4:45 a. m. Train 484, traveling in the rear, arrived at the coal dock a few minutes later and left at 5:07 a. m., 22 minutes after 486. From Lansing to Morrice is approximately 21 miles. When train 486 arrived at Morrice, it stopped on the main track, and a few seconds thereafter 484 ran into its rear end, killing Drew and Heatlie, and injuring White. Between Lansing and Morrice there was no station at which an operator was on duty at night, and the safety of the trains, while being run between those points, depended upon the observance of operating rules 91 and 99. Rule 91 provided that "trains must keep not less than ten minutes apart unless the preceding train has arrived at the station ahead"; and rule 99, "when a train is moving under circumstances in which it may be overtaken by another train, such action must be taken as may be necessary to insure full protection; lighted fusees, red or yellow as the case may require, must be thrown off at proper intervals." On the trial of the cases the court submitted to the jury the single issue whether or not the rear brakeman on train 486, Given, observed rule 99 by throwing off lighted fusees at proper intervals. Upon this issue the jury found for the plaintiffs and returned verdicts for damages, upon which judgments were entered.

The main error assigned on these appeals is the refusal of the trial court to direct verdicts for the defendant. The argument in support of this assignment is based upon several related propositions of law, all of which rest essentially upon the broad proposition of lack of substantial evidence. The contention of appellant is that the proofs show that Given put out lighted fusees at proper intervals, some seven or eight, between Lansing and Morrice, and that the fog was so dense it was not possible for Drew, Heatlie, White, and conductor Marks, riding on the engine of 484, to see them. It is said that the only testimony to the contrary is the negative testimony of White. White testified that he was sitting on the fireman's side of the engine between these points looking ahead through the front glass or leaning out of the side looking ahead, and that he did not see any fusees. He also stated that a lighted fusee could have been seen through the fog for the distance of a thousand feet in front of the engine. The credibility of this latter statement was impaired by contradictory admissions made on cross examination. Upon this latter hypothesis, and in the light of other evidence as to the density of the fog, it is argued that White's testimony does not rise to the dignity of evidence.

Given testified that he put the fusees out from the rear steps of his caboose, but the fog was so dense he could not see whether they stuck in the ground or ties, or even whether they continued to burn after they reached the ground. His testimony as to putting them out was corroborated in some measure by one or two other witnesses, yet we cannot subscribe to the view that White's testimony, considered in the light of the other evidence, did not present a question for the jury. It has been held quite broadly in some jurisdictions, it is true, that evidence of the failure of witnesses to hear train signals does not make a case for the jury as against positive and affirmative testimony that the signals were given. We have never accepted that doctrine unqualifiedly, but have held that where a witness is in a position where he would normally hear, his failure to do so presents an issue as to the existence of the fact. Detroit Southern R. Co. v. Lambert (C. C. A.) 150 F. 555; Baltimore & O. R. Co. v. O'Neill (C. C. A.) 186 F. 13. In the present cases White testified to facts which would have enabled him to see the fusees if they had been placed on the track. This testimony, with his further testimony that he did not see them, raised an issue, in our opinion, as to whether they were put out. In reaching this conclusion we do not overlook the question of visibility, the contention of defendant being the fog was so dense that however much White may have looked, and however many fusees may have been placed on the track, he could...