Gulf, Mobile and Ohio Railroad Company v. Thornton

• Citation: 294 F.2d 104
• Decision Date: 22 September 1961
• Docket Number: No. 16577,16578.,16577
• Parties: GULF, MOBILE AND OHIO RAILROAD COMPANY, A Corporation, Appellant, v. T. A. THORNTON, Appellee (two cases).
• Court: U.S. Court of Appeals — Eighth Circuit

294 F.2d 104 (1961)

GULF, MOBILE AND OHIO RAILROAD COMPANY, A Corporation, Appellant, v. T. A. THORNTON, Appellee (two cases).

Nos. 16577, 16578.

United States Court of Appeals Eighth Circuit.

August 30, 1961.

Rehearing Denied September 22, 1961.

Alphonso H. Voorhees, St. Louis, Mo., for appellant; Fordyce, Mayne, Hartman, Renard & Stribling, St. Louis, Mo., on the brief.

Branham Rendlen, Hannibal, Mo., for appellee; Rendlen & Rendlen, Hannibal, Mo., C. M. Hulen, Sr., and Hulen & Hulen, Moberly, Mo., on the brief.

Before VOGEL and BLACKMUN, Circuit Judges, and BECK, District Judge.

BECK, District Judge.

These two diversity cases, consolidated for purpose of trial and appeal, arose out of a train-car collision at a railroad crossing on September 11, 1958, at 7:30 a. m., with appellee's wife as the driver of the car and his two minor sons passengers.

Both sons died as a result of injuries received in the accident, which in turn led to the commencement of the actions, trial, $10,000 jury verdicts in each, judgments entered accordingly and these appeals.

Relief from those judgments by reversals or in the alternative new trials are predicated on the following assigned errors: (1) that the court erred in overruling the defendant's motions for directed verdicts; (2) in instructing the jury:

"* * * that if you find and believe from the evidence that the place where the accident occurred was a crossing over the defendant\'s railroad tracks and that said crossing was used by persons and vehicles as a crossing over said tracks to go to and from the farms, buildings and properties lying south of the railroad tracks in question, and if you further find that said crossing had been so used for a long period of time and that the defendant knew of such existence and use of said crossing and had maintained and repaired said crossing from time to time and prior to the collision in question, then you are instructed that it was the duty of the defendant to warn persons approaching the crossing of the approach of its trains by ringing a bell or by sounding a horn or whistle at a distance of at least eighty rods (1320 feet or a quarter of a mile) from the said crossing and to keep ringing such bell continuously or sounding such horn or whistle at intervals until the locomotive of the train shall have crossed such crossing and you are further instructed that the failure of the defendant to so ring the bell if so, or so sound a horn or whistle if so, would, under those conditions, be negligence".,

and (3)¹ in instructing:

"Now if you find and believe from the evidence that the crossing in question was not so used and maintained, that is as the Court has previously instructed you as to its use by various persons going to the farms and to the buildings and so on, that it did not have this particular type of use then the duty of the defendant to warn of the approach of a train only arose when the operator thereof saw or by the exercise of ordinary care could have seen such automobile approaching and in a position of danger of being struck by the train unless a warning was given and at the time when the automobile could have avoided the collision upon becoming aware of the train through such warning, and under the circumstances that failure to warn would be negligence."

Appellant's first contention under (1) points to the evidence as not being sufficient to show the crossing where the accident happened to have been so frequently used as to require the appellant to comply with the Missouri Warning Statute "and sound a whistle or bell a distance of eighty rods from the crossing", and its second, that the evidence was insufficient to show that appellant had breached any duty toward a "non-use crossing".

Seemingly we note, neither one of these contentions advances any entertained theory, that warning signals need not be given under the Missouri law as a train approaches a crossing of the kind and type referred to in the trial court's instruction (hereinafter referred to as a user-crossing), but rather that such a "user-crossing" under the evidence did not exist and that the evidence warranted such a conclusion as a matter of law.

As these motions were made, the trial court had before it a record showing: (1) the crash scene at a point where the appellant's double railroad tracks along the southerly side of the community of Yates, in Randolph County, Missouri, crosses a north and south gravel road which to the north leads into the main street of that community and to the south connects with the appellee's home and farm; (2) the existence of the crossing for forty-eight years; (3) the appellant's maintenance and repair of it for a period, almost equally as long; (4) the established facts of its use by the appellee's family, two others, their visitors, operators of stock trucks, pipe line property people, any others who wanted to use the crossing and the road; and (5) in the rather obvious inference from all of the evidence that the appellant had knowledge of the extent of its use and did not regard it as a private crossing.

Relied on as in conflict therewith or as being in support of the appellant's contentions, is the fact that there was a gate at the crossing which could be used to close the road and was used for that purpose when appellee's livestock was in the pasture south of the appellant's right-of-way; that the families south of appellee's farm had sold their property and were not living there at the time of the accident; that the new owner had an outlet to the county road to the west; that there were no whistle posts at the crossing; and as for the pipe line peoples' use of the road the appellee's testimony:

"Q. All right. Now, you had given them an easement across your property? A. I never give them no easement.

"Q. There is an easement across your property which was given by somebody, some owner of this property. A. Maybe so, but I never give it.

"Q. I\'m asking you. A. As far as I know there is, I\'m not really positive about that, but I never looked into it.

"Q. You gave that pipe line company permission to go through your land to work on its pipes? A. Well, I don\'t know whether you\'d call it that or not. I understand they went through there, in fact, I\'m sure they went through there before I moved to that place. I gave them permission when they were reasonable about it, when they were unreasonable to where I couldn\'t bear it, I asked them not to. I just asked them not to do it.",

and fireman Nidiffer's testimony:

"Q. And you were familiar with the fact that vehicular and pedestrian traffic used that crossing, weren\'t you? A. Well, I hardly ever seen one go over it, not myself.

"Q. You have seen them though, haven\'t you? A. Oh, I may have, yes."

Also in this connection it is admitted that the crossing was not a public crossing as defined in Missouri Statute, Section 389.990.²

Detailing the evidence on this point as we have and aided as we are by certain general and well established rules, which obtain where insufficiency of evidence is assigned as reasons for motions to direct and thereafter, as errors on appeal, we readily agree that the evidence as a whole and the inferences fairly deducible therefrom warranted the trial court in denying the motions and holding the "user-crossing" question as one of fact for the jury. Railway Express Agency v. Mackay, 8 Cir., 1950, 181 F.2d 257, 19 A.L.R.2d 1248; Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720; Lumbra v. United States, 290 U.S. 551, 54 S.Ct. 272, 78 L.Ed. 492; Mattson v. Central Electric & Gas Co., 8 Cir., 1949, 174 F.2d 215; Traders & General Ins. Co. v. Powell, 8 Cir., 1949, 177 F.2d 660; and Hartford Fire Ins. Co. v. Thompson, 8 Cir., 1949, 175 F.2d 10. See also Greene v. Werven, 8 Cir., 1960, 275 F.2d 134 and the reference thereto in that part of the opinion in Coca Cola Bottling Company of Black Hills v. Hubbard, 8 Cir., 1953, 203 F.2d 859, 860, which notes aspects of this rule and circumstances when it is to be applied:

"In considering the question of the sufficiency of the evidence to support the verdict, there are several general rules to be kept in mind. (1) All of the facts which the plaintiff\'s evidence reasonably tends to prove must be assumed to have been established, and all inferences fairly deducible from such facts must be drawn in his favor. Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 74 L.Ed. 720; Egan Chevrolet Co. v. Bruner, 8 Cir., 102 F.2d 373, 377, 122 A.L.R. 987; and cases cited. (2) It is only where the evidence is all on one side or so overwhelmingly on one side as to leave no doubt what the fact is that the court should direct a verdict. People\'s Savings Bank v. Bates, 120 U.S. 556, 562, 7 S.Ct. 679, 30 L.Ed. 754; Gunning v. Cooley, supra, at page 94 of 281 U.S., at page 233 of 50 S.Ct.; Egan Chevrolet Co. v. Bruner, supra, at page 377 of 102 F.2d. (3) The question of negligence is usually one of fact for the jury, and it is only where the evidence, even though it be uncontradicted, is such that all reasonable men must draw the same conclusion from it that the question of negligence becomes one of law for the court. Sears, Roebuck & Co. v. Peterson, 8 Cir., 76 F.2d 243, 248 and cases cited; Egan Chevrolet Co. v. Bruner, supra, at page 377 of 102 F.2d; Northern Liquid Gas Co. v. Hildreth, 8 Cir., 180 F.2d 330, 334-335. (4) Where inconsistent inferences reasonably may be drawn from the evidence, it is for the jury to determine which of the inferences shall be drawn. Turner County, S. D. v. Miller, 8 Cir., 170 F.2d 820, 827. (5) When the sufficiency of the evidence to make a case for the jury presents a doubtful question of local law, this Court will accept the views of the trial court unless convinced of error. Russell v. Turner, 8 Cir., 148 F.2d 562, 564; Turner County, S. D. v. Miller, supra, at page 826 of 170 F.2d; Northern Liquid Gas Co. v. Hildreth, supra, at page 336 of 180 F.2d; Buder v. Becker, 8

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