Hasting v. Southern Ry. Co.

• Decision Date: 06 February 1906
• Docket Number: 620.
• Citation: 143 F. 260
• Parties: HASTING v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

143 F. 260

HASTING v. SOUTHERN RY. CO.

No. 620.

United States Court of Appeals, Fourth Circuit.

February 6, 1906

Jos. A McCollough, for plaintiff in error.

C. P Saunders, for defendant in error.

Before PRITCHARD, Circuit Judge, and PURNELL and KELLER, District judges.

PURNELL District Judge.

Paul Hasting, an infant, son of the plaintiff, eight years old was killed at Welford, S.C., a station on the line of the defendant's road, by being thrown from the platform of a shanty or caboose car and run over in the yard of the defendant while the defendant was engaged in shifting and coupling cars.

The complaint alleges that the deceased was going from his home to an orchard of his father's, and in order to do so it was necessary for him to cross the track of the defendant where the public highway or street intersects the same. When he arrived at this point he found the highway blocked with cars, and it so remained for an unreasonable and unlawful length of time, and the deceased being induced by the conduct of the defendant company, or its agent, attempted to cross from the platform of the station to the platform of the shanty car, and, while he was so doing, the defendant, in a careless and negligent manner, backed its engine against a line of cars connected with the said shanty car with such force as to throw the deceased from the platform to the track and under the wheels of a car, and the negligence of the defendant consisted in the unlawful blocking of the public highway with its cars, and the failure of the company to furnish a lookout to warn persons attempting to cross the track at this station, and the failure to ring the bell or sound the whistle or to give any warning before moving the cars.

The following facts appear by the testimony: On the day alleged the defendant was engaged in shifting cars at Welford, S.C., with an engine of one of its freight trains. In doing this it was necessary for it to move the engine from the main line to the side track, on which several freight cars, including the shanty car, were standing. In going back into the side track, and in undertaking to couple cars there, it shoved some of the cars back, striking and moving the shanty car on the platform of which the deceased was standing. In shifting from main line to side track the noise made by the engine was heard by persons at some distance from the track. In moving these cars it used due care, coupling them in the ordinary and usual way. Deceased left the street in the town of Welford, walked down to the depot of the defendant, finding the cars across the street, and, without waiting for them to move, at once left the street or highway and entered upon the depot platform of the defendant, and at a point 40 or 50 feet away from the highway undertook to cross over by stepping from the depot platform to the shanty car. While he was on the platform of the depot going towards the shanty car, the engine which was doing the shifting was in sight and hearing of the deceased and others. Just before, and as he was about to step from the platform to the shanty car, a negro standing on the platform warned him and told him not to do so, telling him to come back. The deceased, instead of heeding the warning, made a mouth at the negro, left the depot platform, and entered on the shanty car. Immediately after he had done so, the engine, in coupling the cars, shoved or moved this shanty car, and the deceased, who was standing on its platform, fell off, and the wheels of the car ran over him, inflicting injuries from which he died.

The testimony also shows that none of the employes of defendant had any knowledge that the deceased was on or about the depot or cars. There is no allegation of willfulness and wantonness or of the earning capacity of deceased, nor was there any testimony introduced tending to show such facts. His honor, the presiding judge, directed a verdict for the defendant, from the judgment based thereon plaintiff appealed.

There was no error in the trial judge directing a verdict, if, after the testimony, the court was, as stated in the record, 'of the opinion that there is no sufficient proof of negligence to sustain a verdict and it (the court) would set aside any verdict that is rendered. ' The courts of the United States have so often decided this question that it seems useless to cite authorities which were collated by this court in an appeal from the same district as the case at bar, at the last term of this court, in Turnbull v. Ross et al., 141 F. 649. It may be taken as settled law. Of course, the action of a trial judge in directing a verdict is subject to review, but error in so doing must be plainly pointed out. Appellate courts will not lightly set aside a verdict directed by a trial judge who has heard the whole case and thus expressed his deliberate opinion that either party is not entitled to a verdict. Many of the exceptions in the record appear to be based on a different view of the law as to the duties of a trial judge. This erroneous view of the law is expressed in nine paragraphs of the bill of exceptions, or nine exceptions.

The statement of the trial judge is not based on the question of contributory negligence, which is interjected into the briefs and argued at length. It is held by many of the courts, as cited in Pierce on R.R., 338, and note, that the negligence of parents in allowing children of tender years to wander unattended upon a railroad is contributory negligence which will defeat an action by the parents. The same doctrine, in Manly v. Railroad, 74 N.C. 655, and other cases citing and affirming this decision, which is founded on good law, common sense and equity. But, as said, this does not seem to have entered into the reasons of the trial judge, who puts his action plainly and explicitly on the one ground 'that there is not sufficient proof of negligence to sustain a verdict. ' It will be noted the facts proved do not measure up to the allegations of the complaint. There is a material difference in the allegations and facts proved. There is no controversy about the facts stated as proved or appearing by the testimony. Much is said in the briefs and the argument, in fact great stress is laid, on the fact that the highway or street was blocked, in violation of the town ordinance of Welford. The city or town ordinance was proved by parol testimony to have been passed and advertised, as was another ordinance prohibiting boys trespassing on the railroad yards and jumping on the cars-- the last having been caused by the action of the Hasting boys and others; but neither ordinance is set out in the record, and hence cannot be considered. The South Carolina statute, too, in regard to sounding the whistle at crossings, is invoked; but the first part of this...