Gross v. Southern Railway Company, No. 26650.

CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
Writing for the CourtCOLEMAN and GOLDBERG, Circuit , and SKELTON, of the Court of Claims
Citation414 F.2d 292
PartiesBarbara R. GROSS, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellee. Nancy Ruth CANIPELLI, Plaintiff-Appellant, v. SOUTHERN RAILWAY COMPANY, Defendant-Appellee.
Decision Date30 May 1969
Docket NumberNo. 26650.

414 F.2d 292 (1969)

Barbara R. GROSS, Plaintiff-Appellant,
v.
SOUTHERN RAILWAY COMPANY, Defendant-Appellee.

Nancy Ruth CANIPELLI, Plaintiff-Appellant,
v.
SOUTHERN RAILWAY COMPANY, Defendant-Appellee.

No. 26650.

United States Court of Appeals Fifth Circuit.

May 30, 1969.


414 F.2d 293
COPYRIGHT MATERIAL OMITTED
414 F.2d 294
H. T. O'Neal, Jr., Robert S. Slocumb, Manley F. Brown, Adams, O'Neal, Steele, Thornton & Hemingway, Macon, Ga., for appellants

John B. Harris, Jr., Joseph H. Davis, Joseph H. Chambless, Macon, Ga., for appellee; Harris, Russell D. Watkins, Macon, Ga., of counsel.

Before COLEMAN and GOLDBERG, Circuit Judges, and SKELTON, Judge of the Court of Claims.*

SKELTON, Judge:

The present litigation involves two damage suits growing out of a collision between an automobile and a freight train at a railroad crossing which resulted in the death of one person and serious injuries to the other. The cases were consolidated for the purpose of trial. After a pretrial hearing, the trial court granted defendant's motions for summary judgment and the plaintiffs have jointly appealed to this court from the judgment of the trial court. We reverse the decision of the court below and remand the case to the trial court for a trial, because, in our opinion, there are genuine issues of material fact that should have been submitted to a jury.

The learned trial judge filed a comprehensive and well prepared memorandum opinion in the case, but we reach different conclusions to those set forth in his opinion.1

These two cases were removed from the Superior Court of Monroe County, Georgia, by the defendant railway company, a Virginia corporation having its principal place of business in the District of Columbia. The cases arise out of a collision between the 30th car of the defendant's moving freight train and an automobile owned by Nancy Ruth Canipelli, the plaintiff in Civil Action No. 2325, and operated by the deceased, Don C. Gross, Jr., the son of the plaintiff, Barbara R. Gross, in Civil Action No. 2324. The collision occurred in Monroe County at a railroad crossing on a gradual curve of Highway 74. At that point the highway and the tracks do not form right angles but make a pattern in the shape of an "X". In general, it may be said that the tracks run north and south and the highway runs east and west. Parallel to and about 15 feet west of that stretch of track south of the crossing is a paved road which intersects but does not cross the highway. There is a stop sign compelling traffic approaching the highway on this side road to stop before entering the highway. A few feet east of the crossing there was a sign complying

414 F.2d 295
with the following regulation of the Public Service Commission of the State of Georgia
"Ordered: That the Railroad Commission now Georgia Public Service Commission. See Ga.Laws 1922, p. 143 of Georgia does hereby designate as the standard sign to be erected and used at all crossings of railroads by public highways, in this State, under the provisions of the Act of the General Assembly of Georgia, what is commonly known as the `X\' sign, the same being a sign in the form of the letter `X\' by Boards crossed on an upright post. The boards forming the `X\' shall be not less than six (6) inches wide and four (4) feet in length, and shall be painted white, bearing on both sides in black painted letters not less than four and one-half (4½) inches high, the words `RAILROAD CROSSING.\' The lowest point of the boards shall be not less than eight (8) feet above the surface of the ground. The sign shall be so placed as to be plainly visible to persons using said highways, approaching the railroad from either direction."
FURTHER ORDERED: that standard signs as herein designated shall be erected by each railroad within the State of Georgia within eighteen months after February 1, 1919, that is to say, by August 1, 1920."

There was no such sign on the west side of the crossing, but on Highway 74 about 430 feet west of the crossing facing the Canipelli car there was a standard round yellow sign with a black diagonal cross and the letters "RR." There was also a standard red octagonal stop sign on the west side of the crossing facing traffic going east. Although the crossing is on a gradual curve, there is an unobstructed view of the crossing from a point substantially west of this yellow sign.

On the morning of September 14, 1967, the deceased and Miss Canipelli drove from Macon to Callaway Gardens and passed over this railroad crossing for the first time. About 8:30 that night Gross, accompanied by Miss Canipelli, was driving the Canipelli car back to Macon in an easterly direction on Highway 74. Both were unfamiliar with this highway and crossing and, in fact, lost their way and had to ask directions along the road before reaching the crossing. There is no allegation of unlawful speed on the part of Gross, and it may be assumed that he was traveling at the maximum lawful speed of 50 m. p. h. as suggested by the plaintiffs' counsel. The weather was clear and it was dark. When they reached the vicinity of the crossing, there were two motor vehicles with headlights on that were traveling in a northerly direction toward Highway 74 along the side road that runs along the west side of the railroad. A member of the train crew estimated that these two vehicles were several hundred yards behind the engine of the train when it passed over the crossing. These vehicles turned to the left on Highway 74 when they reached it and proceeded in a westerly direction, as they could not go to the right because the train was on the crossing. As Gross and Miss Canipelli approached the crossing, Gross dimmed his lights in response to the flashing of headlights by the driver of one of the approaching cars which had come onto the highway from the paved side road near the crossing. It is not clear exactly how far from the crossing the Canipelli car met and passed this other car, but on page 30 of Miss Canipelli's deposition she states: "I remember seeing the lights and hitting the train almost at the same exact time, so it would have had to have been close."

There is a conflict as to whether or not the engineer blew the whistle in accordance with Ga.Code Ann. § 94-506 (1956 Rev.). At page 9 of the deposition of engineer White, he states that he rang the bell and blew the prescribed whistle beginning at the blowpost, which is 400 yards from the center of the crossing, and ending at the crossing. His testimony is corroborated by that of the trainman and the conductor. On page 33 of Miss Canipelli's deposition, she states that the whistle did not blow, and that she knows

414 F.2d 296
that this is so because she could have heard it if it had blown. On page 34 of her deposition she further states that she does not remember Gross slowing down or applying his brakes before the collision. She states also that he never changed direction prior to the collision

The Canipelli car struck the 30th car of the northbound freight train demolishing the automobile, killing Gross and injuring Miss Canipelli. Gross' mother asks $165,000 and Miss Canipelli asks $75,000 damages.

Both plaintiffs allege that the defendant was negligent in four particulars: (1) in failing to have an "X" sign at the crossing that is visible to motorists approaching from the west in violation of the regulation of the Public Service Commission quoted above; (2) in failing to have at the crossing either flashing lights, automatic gates, an electric buzzer system, or a human watchman to give special warning of the train; (3) in blocking the highway with a dark train at nighttime without giving any warning whatsoever of the obstruction; and (4) in failing to blow the whistle of the train as it approached the crossing, in violation of the laws of Georgia.

The Supreme Court held in the case of Sartor v. Arkansas Gas Corp., 321 U.S. 620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944):

* * * Rule 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try. * * *.

Rule 56 is a valuable rule that is useful in the speedy disposition of cases where there is no issue to be tried. However, it is rarely used in negligence cases. There is a general rule that has been followed and approved by this court many times to the effect that issues of negligence, contributory negligence and proximate cause, the resolution of which requires the determination of the reasonableness of the acts and conduct of the parties under all the facts and circumstances of the case, cannot ordinarily be disposed of by summary judgment. See St. John v. New Amsterdam Casualty Co., 5 Cir. 1966, 357 F.2d 327, 328; Dornton v. Darby, 5 Cir. 1967, 373 F.2d 619, 621; Melton v. Greyhound Corp., 5 Cir. 1965, 354 F.2d 970, 972-973; Alabama Great So. R. Co. v. Louisville & Nashville R. Co., 5 Cir. 1955, 224 F.2d 1, 5; Taff v. Singer Sewing Machine Co., 5 Cir. 1964, 331 F.2d 405, 407; Roucher v. Traders & General Insurance Co., 5 Cir. 1956, 235 F.2d 423, 424; Stace v. Watson, 5 Cir. 1963, 316 F.2d 715, 716. See also, 6 Moore's Federal Practice, § 561.17(42) p. 2232.

The rule was stated in St. John v. New Amsterdam Casualty Co., supra, as follows:

* * * It is likewise true that issues of negligence, contributory negligence and probable cause cannot ordinarily be determined on summary judgment. * * *. Id. at 328.

This court stated in Melton v. Greyhound Corp., supra, after citing the decision of the Supreme Court in Sartor v. Arkansas National Gas Corp., supra:

* * * Important to the present case is the recognition by this Court "that as a general proposition the issue of negligence * * * is ordinarily not susceptible of summary adjudication", but
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227 practice notes
  • Aretz v. U.S., No. 78-3615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 15, 1979
    ...and ordinary care vary under the circumstances, these are ordinarily questions for the factfinder. E. g. Gross v. Southern Railway Co., 414 F.2d 292, 301 (5th Cir. 1969); Bussey v. Dawson, 224 Ga. 191, 193-94, 160 S.E.2d 834 In this case the district court found that the government was warn......
  • SCHUCHART & ASSOCIATES, ETC. v. Solo Serve Corp., Civ. A. No. SA-81-CA-5.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • April 21, 1982
    ...fact against the moving party. The Court may not assess the probative value of any of the evidence. Gross v. Southern Railway Co., 414 F.2d 292, 297 (5th Cir. 1969). However, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleading, but must set ......
  • In re Yarn Processing Patent Validity Litigation, No. 73-2420.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...or the judge sitting as a trier of facts. Gauck v. Meleski, 5 Cir. 1965, 346 F.2d 433, 436. Accord, Gross v. Southern Ry., 5 Cir. 1969, 414 F.2d 292. Questions of credibility should not normally be decided by means of summary judgment but should instead be left for the trier of fact. Croley......
  • Shawmut Worcester County Bank, N.A. v. Miller
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • August 18, 1986
    ...the party moving for summary judgment." Attorney Gen. v. Bailey, 386 Mass. 367, 371, 436 N.E.2d 139 (1982), quoting Gross v. Southern Ry., 414 F.2d 292, 297 (5th "In considering a motion for summary judgment, the court does not 'pass upon the credibility of witnesses or the weight of the ev......
  • Request a trial to view additional results
227 cases
  • Aretz v. U.S., No. 78-3615
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • October 15, 1979
    ...and ordinary care vary under the circumstances, these are ordinarily questions for the factfinder. E. g. Gross v. Southern Railway Co., 414 F.2d 292, 301 (5th Cir. 1969); Bussey v. Dawson, 224 Ga. 191, 193-94, 160 S.E.2d 834 In this case the district court found that the government was warn......
  • SCHUCHART & ASSOCIATES, ETC. v. Solo Serve Corp., Civ. A. No. SA-81-CA-5.
    • United States
    • United States District Courts. 5th Circuit. Western District of Texas
    • April 21, 1982
    ...fact against the moving party. The Court may not assess the probative value of any of the evidence. Gross v. Southern Railway Co., 414 F.2d 292, 297 (5th Cir. 1969). However, the party opposing summary judgment may not rest upon the mere allegations or denials of his pleading, but must set ......
  • In re Yarn Processing Patent Validity Litigation, No. 73-2420.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 29, 1974
    ...or the judge sitting as a trier of facts. Gauck v. Meleski, 5 Cir. 1965, 346 F.2d 433, 436. Accord, Gross v. Southern Ry., 5 Cir. 1969, 414 F.2d 292. Questions of credibility should not normally be decided by means of summary judgment but should instead be left for the trier of fact. Croley......
  • Church of Scientology Flag Services Org., Inc. v. City of Clearwater, No. 84-719-CIV-T-17.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Middle District of Florida
    • February 4, 1991
    ...moving party. Hayden v. First National Bank of Mt. Pleasant, 595 F.2d 994, 996-97 (5th Cir.1979), (quoting Gross v. Southern Railroad Co., 414 F.2d 292 (5th Cir.1969)). Factual disputes preclude summary judgment. The Supreme Court of the United States held, in Celotex Corp. v. Catrett, 477 ......
  • Request a trial to view additional results

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