Hines v. Hoover

• Decision Date: 15 March 1921
• Docket Number: 3633.
• Citation: Hines v. Hoover, 271 F. 645 (5th Cir. 1921)
• Parties: HINES, Director General of Railroads, v. HOOVER.
• Court: U.S. Court of Appeals — Fifth Circuit

271 F. 645

HINES, Director General of Railroads, v. HOOVER.

No. 3633.

United States Court of Appeals, Fifth Circuit.

March 15, 1921

A. A Lawrence, Edmund H. Abrahams, and F. R. Youngblood, all of Savannah, Ga., for plaintiff in error.

F. M Oliver and Edgar J. Oliver, both of Savannah, Ga., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

BRYAN Circuit Judge.

This suit was brought by defendant in error, herein called plaintiff, against the Director General of Railroads, to recover damages for the death of her husband.

Plaintiff's decedent was killed by a passenger train of the Atlantic Coast Line Railroad Company at Drakie's road crossing in the village of Monteith, Ga. The railroad extends in a north and south line through this village. About 375 feet south of the Drakie road crossing a public highway 20 feet in width, called the Augusta road crosses the railroad obliquely, and bears away from it north of the public crossing in a straight line, and at a distance of 900 feet is approximately 300 feet west of the railroad track. Drakie's road begins and leads away from the Augusta road at a point about 50 feet west of the railroad track, which it intersects at right angles. Although Drakie's road is not a public road, it was in common use many years before the railroad was built, and Drakie's crossing has been maintained and kept in repair by the railroad company. There is another private road, leading eastward from the Augusta road, which crosses the railroad about 325 feet north of the Drakie road crossing. Between these two private crossings, and lying between the Augusta road and the railroad, are two houses, a fence, a tree, and a grape arbor, extending up to the railroad right of way and within 35 feet of the track. At the time of the accident the right of way was grown up in weeds so high, according to some of the witnesses, that it was impossible for a man riding in an automobile to see a train coming from the north until he was within 15 or 20 feet of the railroad track. There was some testimony that the view was obstructed by the weeds as close as 5 feet of the track. On the right of way, also, was a small station house which further obstructed the view to the north.

Just immediately before the accident, plaintiff's husband started his automobile from the intersection of the Drakie and Augusta roads, and was proceeding to cross the track on Drakie's road when a train coming from the north struck the automobile which he was driving and killed him. The train was at least half an hour behind its schedule, and no train was due at that time. The schedule called for an average speed of 35 miles per hour, with the privilege of running as high as 50 miles per hour to trains making up lost time. The evidence was in conflict as to the speed of the train at the time of the accident; some of the witnesses testifying to a rate not exceeding 35 miles per hour, and others estimating the speed at from 50 to 65 miles per hour. The witnesses agreed that two short blasts of the whistle were sounded at the moment of the collision, but there was conflict as to whether the whistle was blown before that. The engineer testified that he did not see plaintiff's husband until he was within 15 feet of the track, and that after that he made every possible effort to stop the train, and that in fact he did stop within less than 500 feet south of the point of the accident. It is not claimed that the bell was rung, or that any other warning was given. There is not much, if any, doubt that the weeds were high enough to obstruct the view of one on the railroad right of way until he was within 15 or 20 feet of the track.

At the close of the evidence the court denied defendant's motion to direct a verdict, and also refused his request to charge the jury as follows:

'It was the duty of the deceased to use his senses to avoid injury, and if you find that he did not stop, look, and listen, and that he could have avoided the injury by stopping, looking, and listening, you should find for the defendant.' The jury found for the plaintiff and assessed the damages at $5,000. No complaint is made as to the correctness of the court's charge, and the only assignments of error are based upon the denial of the motion for a directed verdict, and upon the refusal to give the request to charge above set out.

There was sufficient evidence of defendant's negligence. Upon proof of the injury alleged, a presumption of the negligence charged arose under the Georgia Code of 1910, Sec. 2780. It was also the statutory duty of the railroad company to maintain a blow post 400 yards north of the public or Augusta road crossing, and of the engineer to begin sounding the whistle upon reaching the blow post, and to blow two long and two short blasts at intervals of five seconds between each blast, and to keep a lookout along the track ahead of the engine, and otherwise to exercise due care in approaching the public crossing in order to avoid injury to persons or property on or within 50 feet of it. Acts of Georgia Legislature of 1918, p. 212.

It is true that plaintiff's decedent was not at the public crossing or within 50 feet of it, but the court charged the jury, without objection or exception, that if there was a failure to comply with the statute as to the sounding of the whistle, that fact might be considered in connection with the other evidence as bearing upon defendant's negligence; and this charge appears to be in accord with the opinion of the Supreme Court in Atlanta & Charlotte Railway Co. v. Gravitt, 93 Ga. 369, 20 S.E. 550, 26 L.R.A. 553, 44 Am.St.Rep. 145.

In addition to compliance with statutory requirements, it was the duty of defendant to perform any other acts required by the circumstances of the case and dictated by the rules of ordinary care and diligence. 2 Shearman & Redfield on Negligence (6th Ed.) Sec. 463a; Acts of Georgia Legislature of 1918, p. 214. It can hardly be doubted that the obstructions caused by the buildings, fence, grape arbor, tree, and weeds made the question of defendant's negligence one of fact for the jury.

Defendant's chief reliance to defeat recovery is that plaintiff's decedent was himself guilty of such contributory negligence as ought to bar a recovery. Upon this subject are these two Georgia statutes:

'Consent or Negligence. No person shall recover damage from a railroad company for injury to himself or his property, where the same is done by his consent, or is caused by his own negligence. If the complainant and the agents of the company are both at fault, the former may recover, but the damages shall be diminished by the jury in proportion to the amount of default attributable to him.

'Diligence of Plaintiff. If the plaintiff by ordinary care could have avoided the consequences to himself caused by the defendant's negligence, he is not entitled to recover. But in other cases the defendant is not relieved, although the plaintiff may in some way have contributed to the injury sustained.'

Georgia Code of 1910, Secs. 2781, 4426

As to the effect of the just quoted sections upon the doctrine of contributory negligence unaffected by statutory provisions see Western & Atlantic Railroad Co. v. Ferguson, 113 Ga. 708, 39 S.E. 306, 54 L.R.A. 802; Alabama G.S. Ry. Co. v. Coggins, 88 F. 455, 32 C.C.A. 1; Shearman & Redfield on Negligence (6th Ed.) Sec. 103; 1 Thompson on Negligence, and Supplement, Sec. 268.

Whatever the true construction of these comparative negligence statutes may be, it cannot be doubted that they were intended to render less harsh the common-law doctrine of contributory negligence. Defendant takes the position that it is the duty of one about to cross a railroad to stop, look, and listen for approaching trains. It is impossible to reconcile all of the cases, and it need not be denied that many can be found to sustain that contention.

We are of opinion that it cannot be said that the invariable rule in the Supreme Court of the United States is that one approaching a railroad crossing is bound, as a matter of law always and under all circumstances to stop, look, and listen. That is said to be the unbending rule in Pennsylvania, and it is stated by Shearman & Redfield on Negligence, Secs. 476, 477, that only in...