Hall v. Atchison, T. & S. F. Ry. Co.

• Decision Date: 18 November 1974
• Docket Number: No. 73-3106,73-3106
• Citation: 504 F.2d 380
• Parties: Ellis B. HALL, Charles R. Hall and Eunice E. Hall, Plaintiffs-Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 380

504 F.2d 380

Ellis B. HALL, Charles R. Hall and Eunice E. Hall Plaintiffs-Appellants, v. The ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY, Defendant-Appellee.

No. 73-3106.

United States Court of Appeals, Fifth Circuit.

Nov. 18, 1974.

John S. Walker, Center, Tex., for plaintiffs-appellants.

Larry W. Starr, Longview, Tex., for defendant-appellee.

Before WISDOM and CLARK, Circuit Judges, GROOMS, District Judge.

WISDOM, Circuit Judge:

This wrongful death action, governed by Texas tort law under Erie, is unusual in that the instrumentality allegedly causing the wrongful death did not come into physical contact with the decedent. Ellis B. Hall, husband of Mrs. Dovie Hall, and their two children, charles and Eunice Hall sued the Atchison, Topeka & Santa Fe Railway Co., for the wrongful death of Mrs. Hall. Vernon's Ann.Tex.Code, 4675 and 5525. The theory of the plaintiffs' case, simply stated, is that the defendant railroad negligently blocked the decedent's access to the hospital to which she was being taken by her husband, that the decedent was suffering the onset of an acute asthma attack at the time, and that the delay occasioned by the blocked crossing aggravated the attack to such an extent that the decedent lapsed into a coma shortly after she did reach the hospital and died later in the day. At the close of the plaintiffs' case, the defendant moved for a directed verdict on three grounds relevant to this appeal: first, that there was no evidence upon which a finding of negligence on the part of the railroad could be based; second, that the evidence failed to demonstrate any causal connection between the defendant's conduct and the injuries and death complained of; and, third, that, even if cause in fact had been demonstrated, the injuries and death were not foreseeable, and therefore, as a matter of law, the defendant's conduct could not be their proximate cause. The trial court granted the directed verdict. We reverse and remand for a new trial.

I.

In reviewing the evidence to determine the propriety of the district court's granting a directed verdict at the close of the plaintiff's evidence, this Court must observe the following standard:

The evidence must be viewed in the light most favorable to the plaintiff, giving the plaintiff the benefit of every inference favorable to him which may be fairly drawn. It is not for the court to weigh the conflicting evidence or to judge the credibility of witnesses. Whenever the evidence is such that fair-minded men may draw different inferences therefrom, and reasonably disagree as to what the verdict should be, the matter is one for the jury.

American Fidelity & Casualty Co. v. Drexler, 5 Cir. 1955, 220 F.2d 930, 932-933. See also Isaacs v. American Petrofina, 5 Cir. 1966, 368 F.2d 193.

Mrs. Dovie Hall had suffered from asthma for a number of years preceding her death. Dr. Vernon Polk, her personal physician from 1956 until her death in 1970, testified that in the months preceding her death her condition had deteriorated. He stated that in the year preceding her death she had a number of asthma attacks that had necessitated emergency treatment at the hospital in Center, Texas. On each occasion he had successfully controlled the attacks by the administration of drugs such as adrenalin or steroid compounds that dilate the bronchial passages and help restore the normal flow of air to the lungs. In some instances, he had administered a sedative to relieve the fear and anxiety typically accompanying a serious asthmatic attack. He gave such treatments on September 8, September 25, and on September 30, 1970, the day preceding her death. On September 29 or 30, at Dr. Polk's suggestion, Mr. Hall had driven the decedent to a major hospital in Galveston for further diagnosis, but she was not admitted. Dr. Polk testified presumably because those who examined her in Galveston concluded that every appropriate measure was being taken in Center by him as her personal physician. An automobile trip of this length might have aggravated her condition. Dr. Polk stated that, in the days before her death, he had no indication that she would die. On the contrary, he had always been able to control her attacks and if he had had any indication that his mode of treatment would not be sufficient to control the symptoms, he would have ordered her immediate hospitalization for more intensive supervision. In response to a hypothetical question ¹ regarding the effect of a twenty-five to forty minute delay in obtaining medical attention upon a patient suffering the onset of a severe asthmatic attack, and whether such a delay was a 'major contributing cause' of her death, Dr. Polk answered in part:

To be perfectly honest in answering this question, of course you cannot answer it. I don't think you can give an absolute answer to this question. From a legal standpoint, or whatever you are meaning to consider this legal thing here because as I have stated before, any delay in treating an asthmatic condition-- the quicker you can get some definite treatment started, the more likely you will be able to relieve the symptoms, is that an answer?

. . . . be

Well, I think the delay would certainly contribute in some measure to the condition, but whether it was a major factor in the woman's demise or not, I cannot-- I mean, I am not going to-- I don't know whether I can say it was a major or contributing factor in her demise; . . .

. . . .tor

I think it would be a contributing factor, yes. Dr. Polk further testified that Mrs. Hall checked in to the emergency room about 9 a.m. on October 1, and that, despite sedation and the other treatment outlined earlier in his testimony, she lapsed into a coma and died about 12 hours later. Administration of the drugs he gave her effected some improvement in her symptoms, but her over-all condition did not improve after she entered the hospital that morning.

Eunice Hall, her daughter, testified that when she left their home for work, some time between 6:30 and 7 a.m. that day, her mother appeared to be sleeping normally. Mr. Hall testified that the attack began between 7:30 and 7:45 and he and his wife set out for the hospital at once. He stated that their home was on Cotton Ford Road, and that usually it was a ten to twelve minute drive from their home to the hospital. That morning, however, a freight train blocked the Atchison, Topeka and Santa Fe crossing on Cotton Ford Road near the Bryce Lumber Mill. To drive from the blocked crossing on to the hospital would take five to six minutes. The only other route he was aware of would require a relatively lengthy detour and would take at least twenty-five minutes. There was no agent or employee of the defendant at the crossing or anywhere else in the vicinity, so far as he could tell. There was, therefore, no one to whom he could communicate the necessity for quick action, and no one to advise him what had caused the train to block the crossing and how long the crossing would remain blocked. The derailed cars were not visible to him from the crossing. As the minutes passed, Mrs. Hall's attack became more severe. Worse, she became terrified at the possibility that they would not reach the emergency room in time. Mr. Hall started to leave the crossing to summon help, but she begged him to stay with her. Her neck became swollen and the circulation in her extremities diminished. Finally the train was broken and the crossing cleared. The delay in reaching the emergency room was thirty to forty minutes.

There was also evidence to show that the derailment occurred some time before 8 a.m. that day, and that the Cotton Ford crossing was blocked at least one half hour. There was some testimony regarding the alleged poor state of repair of the track in the general area of the derailment. The sheriff of Shelby County testified that his office was not notified of the derailment and did not dispatch personnel to the scene to re-route traffic or otherwise alleviate the confusion that might be generated.

We conclude that this testimony made out a case for the jury.

II.

The defendant's first ground for a directed verdict is that there is no evidence upon which a finding of negligence could be based. On the contrary, we find two grounds that would support a finding of negligence.

The record shows that the train blocked the Cotton Ford Road crossing for well over five minutes, in violation of a Texas penal statute, Vernon's Ann.Stat., art. 6701d-5. The law of Texas is settled that a violation of this statute constitutes negligence per se. See Louisiana & Arkansas R. Co. v. Hughes, 5 Cir. 1967, 374 F.2d 106, and the Texas cases collected there.

The defendant argues that the blocking was accidental rather than willful, as the statute requires. Whatever may be said of the cause of the derailment, there is nothing in this record to excuse the railroad's lengthy delay in breaking the train and making the crossing passable once the derailment had occurred. A jury finding of negligence therefore would be reasonable. See generally Morris, The Role of Criminal Statutes in Negligence Actions, 49 Colum.L.Rev. 21 (1949). Such a finding, however, affects only one element of the plaintiff's case in a negligence action; causation and damages must still be demonstrated.

The second ground that would support a finding of negligence on the part of the defendant is the doctrine of res ipsa loquitur. This doctrine recognizes that an inference of negligence may be drawn against a defendant when an injury is inflicted by an instrumentality under the control and management of the defendant, and the nature of the incident induces a reasonable belief that it would not have happened absent negligence. Texas courts have applied this rule of evidence to derailments occurring on railroads. See, e.g., Washington v. Missouri, K. & T.R. Co., 1897, 90 Tex. 314, 38 S.W. 764. The chief justification for the rule is that the means of proof...