Hamilton v. Southern Ry. Co., 5583.

• Decision Date: 16 June 1947
• Docket Number: No. 5583.,5583.
• Citation: 162 F.2d 884
• Parties: HAMILTON v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

162 F.2d 884 (1947)

HAMILTON v. SOUTHERN RY. CO.

No. 5583.

Circuit Court of Appeals, Fourth Circuit.

June 16, 1947.

John W. Rust, of Fairfax, Va., and Henry P. Thomas, of Alexandria, Va. (W. Hobart Little, of Washington, D. C., on the brief), for appellant.

Gardner L. Boothe, of Alexandria, Va., and Thomas B. Gay, of Richmond, Va. (Armistead L. Boothe, of Alexandria, Va., on the brief), for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

The complete collapse of a bridge which carried the public highway over the tracks of the Southern Railway Company at Fairfax Station, Virginia, caused the death on the morning of June 4, 1944, of Robert V. Hamilton, a member of the armed forces of the United States who was riding at the time in an army truck that was one of a convoy of 84 one-and-one-half ton trucks en route from Fort Belvoir to Big Meadows in the Shenandoah Valley, Virginia. The suit was brought by his administratrix against the Railway Company which was under a duty to construct and maintain the bridge by virtue of the provisions of Sections 3886, 3972, 3974, 3974a, and 3974b of the Code of Virginia of 1942.

A driver and his assistant occupied the front seat of the truck while 12 or 13 soldiers, including the deceased, were seated in two rows of longitudinal seats inside the body of the truck which was covered by a tarpaulin that confined their field of vision to the rear of the vehicle. Approximately 80 trucks, running at intervals of 100 yards, had crossed in safety from east to west, but as soon as the decedent's truck, one of the last in line, entered upon the bridge, it suddenly collapsed without warning and the truck with its occupants fell to the railroad tracks 35 or 40 feet below.

The bridge was 128 feet in length. The metal super structure was of the open type and consisted of two overhead trusses, one on each side, supported at the ends by large wrought iron posts rising at an oblique angle and resting upon abutments. These trusses carried the entire weight of the bridge, including the flooring which was composed of wooden cross beams and wooden planks. The four end posts were completely exposed and unprotected, and it is conceded that the cutting or shattering of any one of them would cause the whole structure to fall.

The bridge was first erected before 1890 and had been used by the Railway Company in Alabama as a railroad bridge to carry locomotives and cars, weighing a total of 130 tons. But when the line was strengthened to carry a greater weight in 1903, it was installed at Fairfax as part of the public highway. It was considered safe for ten-ton vehicles by the State Highway Department; and for a year military convoys had used it with safety. It was inspected every three months, the last time in March, 1944, and no defect in its condition was observed.

At the trial the plaintiff endeavored to show that the bridge was in a condition of disrepair and unfit for the passage of modern vehicular traffic. Testimony was given as to minor defects existing before the accident, such as a crack through a line of rivets, a nut missing from a bolt, the rattling of the floor, and the vibration of the superstructure when vehicles crossed; but this evidence need not be examined in detail, for as found by the trial judge, it was quite lacking in probative force to account for the accident. So far as the plaintiff is concerned, the fall of the bridge was unexplained, and reliance was restricted to an inference of unfitness in the structure derived from the mere occurrence of the catastrophe.

The Railway Company, on the other hand, had a definite and reasonable explanation based upon weighty evidence. This testimony tended to show that although the truck proceeded at a low rate of speed until it reached the neighborhood of the bridge, it was then speeded up to 40 miles an hour, notwithstanding a warning sign by the roadside, so that when the driver rounded a sharp right hand curve situated 50 feet before the eastern entrance to the bridge, it was necessary to apply the brakes; and when he did so, the truck ran over to the left side of the road and struck the southeast corner of the bridge and shattered it, whereupon the bridge collapsed at the very moment when the truck bounced back from the corner post upon the flooring of the passageway.

While this testimony is at variance with that of the driver of the truck and other witnesses for the plaintiff, it presented an explanation worthy of careful consideration; and it was supported by subsequent examination which disclosed a clean break in the corner post, such as a heavy blow from the truck could have made, and an indentation in the left front corner of the steel body of the truck in which was imbedded a rivet similar to rivets knocked out of the fractured post. The probability that the truck struck the post was enhanced by the fact that the bridge was scarcely wide enough to accommodate two passing vehicles and by the further fact that a vehicle moving at a high rate of speed around the sharp curve just before the entrance to the bridge would tend to swing to the left side of the roadway unless driven with great care.

At the trial below the plaintiff contended that under either version of the accident, she was entitled to recover. The District Judge was of opinion that neither version would support the plaintiff's claim and therefore directed a verdict for the defendant. He thought that the unexplained collapse of the bridge gave rise to no inference of negligence and also that the defendant was under no duty to protect the corner post from such an accident since, in his view, the Railway Company had no reasonable ground to anticipate it.

We consider first the rights and liabilities of the parties upon the hypothesis that the bridge collapsed as soon as the truck entered upon it while running at a reasonable speed and without striking any part of the superstructure. The contention of the plaintiff upon this view of the facts is that a presumption arose, under the doctrine of res ipsa loquitur, that the accident was caused by the negligence of the defendant in respect to the construction or maintenance of the bridge, and hence that the plaintiff was entitled to recover unless the jury should find from other evidence in the case that the defendant had not failed to perform its duty in the premises. In a case of this sort where the jurisdiction of the federal court is based upon diversity of citizenship, it becomes the duty of the court, as we held in Lachman v. Pennsylvania Greyhound Lines, 4 Cir., 160 F.2d 496, to apply the doctrine of res ipsa loquitur in accordance with the law as expounded by the courts of the state where the case is tried.

The doctrine is formulated as follows in Anderson v. Sisson, 170 Va. 178, 183, 184, 188, 196 S.E. 688, 690, where it is said:

"`"* * * The presumption originates from the nature of the act, not from the nature of the relations between the parties. It is indulged as a legitimate inference whenever the occurrence is such as, in the ordinary course of things, does not take place when proper care is exercised, and is one for which the defendant is responsible."

"`A presumption of negligence from the simple occurrence of an accident arises where the accident proceeds from an act of such a character that, when due care is taken in its performance, no injury ordinarily ensues from it in similar cases, or where it is caused by the mismanagement or misconstruction of a thing over which the defendant has immediate control, or for the management or construction of which he is responsible.'

* * * * * *

"The doctrine is not confined to any specific class of tort. It is available to plaintiff in any action based on negligence, where the instrumentality producing the injury is under the exclusive control of the defendant, and the accident is of such a character as does not occur if due care is used. The presumption, or rather the inference, arises from the nature of the accident and from the circumstances, not from the mere happening of the accident itself."

The Virginia cases are also analyzed and discussed in Virginia Electric & Power Co. v. Lowry, 166 Va. 207, 184 S.E. 177, and in Stephens v. Virginia Electric & Power Co., 184 Va. 94, 34 S.E.2d 374, where the burden of proof resting upon the plaintiff throughout the case and the weight to be given to the defendant's explanations of the cause of the accident are considered. Most pertinent for our present purposes are certain railway derailment cases, for they pertain to the degree of care required of one in complete control of an instrumentality designed for public use, and mark out the path to be followed both where the cause of the accident has not been discovered and where it has been fully explained and accounted for by the defendant. As to the burden of proof in such a case the court has the following to say in Anderson v. Sisson, 170 Va. 178, 187, 188, 196 S.E. 688, 692:

"`The rule of res ipsa loquitur, as modified in the Tomlinson and Beard cases, supra Norfolk-Southern R. Co. v. Tomlinson, 116 Va. 153, 81 S.E. 89; Hines v. Beard, 130 Va. 286, 107 S.E. 717, and followed in the Baker case Chesapeake & Ohio R. Co. v. Baker, 149 Va. 549, 140 S.E. 648, 141 S.E. 753 and Chesapeake & O. R. Co. v. Tanner, 165 Va. 406, 182 S.E. 239, does not have the effect of shifting the burden of proof, and does not convert defendant's general issue into an affirmative defense, but when the evidence is all in, the question of preponderance of evidence is for the jury. See McCloskey v. Koplar, 329 Mo. 527, 46 S.W.2d 557, 92 A.L.R. 641, and authorities cited in note thereto. It follows that, in a proper case, the jury may be instructed that it is not incumbent on defendant to account for the means or cause of the happening of the event resulting in injury to plaintiff, or, after due consideration of all the evidence, if they believed that it...