Hines v. Kountis

• Decision Date: 01 February 1921
• Docket Number: 1831.
• Citation: 272 F. 105
• Parties: HINES, Director General of Railroads, v. KOUNTIS.
• Court: U.S. Court of Appeals — Fourth Circuit

272 F. 105

HINES, Director General of Railroads, v. KOUNTIS.

No. 1831.

United States Court of Appeals, Fourth Circuit.

February 1, 1921

Robert E. Scott and H. G. Buchanan, both of Richmond, Va., for plaintiff in error.

H. M Smith, Jr., of Richmond, Va. (Smith & Gordon, of Richmond Va., on the brief), for defendant in error.

Before KNAPP and WOODS, Circuit Judges, and BOYD, District Judge.

WOODS Circuit Judge.

The plaintiff, James Kountis, was run over by one of defendant's cars in its yard near Hopewell, Va. He recovered judgment against the defendant for the loss of a leg and other injuries. The main assigned error is the refusal of the District Judge to direct a verdict for the defendant for failure of proof of negligence. Except at the one crucial point the facts are undisputed. Plaintiff was an employee of E.I. Du Pont de Nemours & Co. at its Hopewell plant. In the contiguous yards of the Norfolk & Western Railway Company there were three tracks parallel to each other connected by crossover tracks. In going to work from the village where they lived and returning, large numbers of the employees of the Du Pont plant walked through the railroad yard every day at the change of shifts. There was no evidence of objection to this custom, though it must have been well known to the railroad officials. At about 11 o'clock on the night of January 11, 1918, about 500 of these employees, plaintiff being one of them, at the change of shift were making their way through defendant's yards. While on or near one of the tracks plaintiff was run over.

As to the precise place and manner of the accident the evidence is in sharp conflict. Plaintiff is a Greek, and his testimony given partly in apparently broken English and partly through an interpreter, is not clear. Making the best of it we can and taking it in connection with the testimony of two other witnesses in his behalf, his case as presented to the jury was this: Plaintiff on his way home walked through the Du Pont plant gate to the main line track and along that track until he got to a crossover to another track. He then turned at the crossover, and had proceeded a few paces on or near the crossover track, when a cab, kicked from the main line onto the crossover without light or guard or control, struck him from the rear. The plaintiff testified that he looked back for cars at least twice as he proceeded.

The testimony of defendant's witnesses in charge of the engine, tender, and cab was to the effect that they kicked the cab down the main line and then backed the engine and tender on the crossover in order to get another car on the next track; that they did not see the plaintiff or know that he was struck. If their testimony is true, the plaintiff must have been struck, not by the kicked cab, but by a tender in front of an engine in charge of a full crew, making an ordinary train movement without knowledge of the plaintiff's danger or his presence. It is difficult to understand, however, their...