Hines v. Smith

• Decision Date: 07 January 1921
• Docket Number: 3432.
• Citation: 270 F. 132
• Parties: HINES v. SMITH. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

270 F. 132

HINES v. SMITH. ^[1]

No. 3432.

United States Court of Appeals, Sixth Circuit.

January 7, 1921

Stephen S. Conroy, of Youngstown, Ohio (Hine, Kennedy, Manchester Conroy & Ford, of Youngstown, Ohio, on the brief), for plaintiff in error.

D. F Anderson, of Youngstown, Ohio, for defendant in error.

This proceeding in error is brought in this court to reverse the judgment of the District Court, Northern District of Ohio Eastern Division, in an action by Kathryn McL. Smith, administratrix of the estate of George J. Smith, deceased, to recover damages from the Erie Railroad Company, for wrongfully and negligently causing the death of her intestate, George J. Smith, who was struck and killed by a passenger train of the Erie Railroad Company at the Main street crossing of the tracks of that company at Niles, Ohio. Later, and before the trial of this action, Walker D. Hines, Director General of Railroads, was substituted as defendant in the place of the Erie Railroad Company.

The petition averred, among other things, that plaintiff's intestate on the 5th day of February, 1918, was driving a closed Ford car on Main street, in the direction of the center of Niles; that when he had reached and was upon the railway crossing his automobile was struck by a passenger train, owned, operated, and controlled by the defendant company, and traveling from Cleveland, Ohio, to Niles, Ohio, which passenger train was operated at a high and dangerous rate of speed, to wit, 30 to 35 miles an hour, in violation of an ordinance of the city of Niles limiting the speed of trains through that city to 4 miles an hour over street crossings where gates were not operated, and 6 miles an hour where gates were in operation, and without giving adequate warning of its approach by whistle, bell, or otherwise; that for some time prior thereto the railway company had maintained gates at this Main street crossing, but that the watchman in charge of this crossing at the time this train approached negligently failed to lower these gates, or to give warning in any other method of the approach of a train; that the watchman stationed at this crossing was old, inefficient, and incapable of properly performing the duties of a crossing watchman.

The defendant by answer admitted its corporate character; admitted that plaintiff's decedent was riding in a motor car in the city of Niles, along Main street, and while attempting to cross the railway tracks on that street in a negligent and careless manner ran his car in the side of a passing train, thereby receiving certain injuries, and that he has died. For its first defense it denies that it was guilty of any negligence, but, on the contrary, exercised due care and caution.

For a second defense it averred that its railway and trains were under the operation of William G. McAdoo, Director General of Railroads of the United States; that it was not a proper defendant to this action; that it had filed a motion asking the court to substitute the Director General of Railroads as defendant, which motion had been overruled by the court; that for the purpose of retaining and protecting its rights in respect to said motion, it averred as a defense that said William G. McAdoo, Director General of Railroads, should be substituted as a defendant; that said Erie Railroad Company, under the direction and control of the Director General of Railroads, was engaged in interstate commerce; that the train that struck and injured plaintiff's intestate was an interstate train, and that the ordinance of the city of Niles was unconstitutional and void as to said train, for the reason that the speed limit required by the ordinance and the enforcement thereof would constitute 'an unreasonable hindrance to, a direct burden on, and an unlawful interference with, interstate commerce.'

For a third defense it averred that if it, or the Director General of Railroads, his agents or employes, were at all negligent in the premises, which it expressly denies, then in that event plaintiff's decedent was guilty of negligence, directly and proximately contributing to bring about his injuries, in that he negligently and carelessly failed to have his automobile under control, and was negligently and carelessly operating the same at a high and dangerous rate of speed upon said crossing, and was negligently and carelessly attempting to pass in front of said train, when he knew, or by the exercise of even slight care and caution could have known, of the approach of said train, and that he negligently and carelessly failed to heed the warnings and signals that were given him to apprise him of the approach of said train, and that he negligently and carelessly failed to stop, look, or listen to ascertain if a train were approaching, or to take any precaution whatsoever for his own safety, although he was an experienced driver of automobiles and was thoroughly familiar with this crossing.

The fourth defense more specifically avers the authority and control of the Director General of the United States over defendant's railroad and transportation facilities at the time of the accident resulting in the injuries to plaintiff's decedent.

Upon the issue so joined the jury returned a verdict for the plaintiff, assessing damages at $45,000, upon which verdict judgment was entered for the full amount thereof. A motion for new trial was filed and overruled, and exceptions noted.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DONAHUE Circuit Judge (after stating the facts as above).

It is clear that the order substituting the Director General as defendant was not erroneous. Northern Pacific Railroad Co. et al. v. North Dakota ex rel., 250 U.S. 135, 39 Sup.Ct. 502, 63 L.Ed. 897; Erie Railroad Co. et al. v. Frank Caldwell, 264 F. 947 (C.C.A. 6). The claim is now made that, notwithstanding the Director General of Railroads was the proper defendant and should have been substituted, the substitution was made at an improper time, to the surprise and disadvantage of the substituted defendant.

It appears from the bill of exceptions that after the jury had been impaneled and sworn, and the case was stated to the jury by counsel for the respective parties, counsel for the substituted defendant objected 'to any testimony or evidence being offered in the trial of this case, because of the substitution of the Director General as party defendant, and because no pleadings or issues are made up as between the parties now in the trial,' which objection was overruled, and exceptions noted. This objection came too late. If the substituted defendant required further time for the preparation of his defense, that request should have been made immediately after the order was entered substituting him as defendant.

It is true that the motion to dismiss and the answer was filed on behalf of the Erie Railroad Company, and if counsel had retired from the case when that defendant was dismissed from the action no presumption would arise that they represented the Director General of Railroads in this particular case, regardless of what relation they may have sustained to him as general or local counsel; but the fact that the third defense of the answer prepared and filed by them denied all negligence on the part of the Director General of Railroads, his agents or employes, taken in connection with the further fact that, after the Erie Railroad Company had been dismissed from the suit, the same counsel assisted in the impaneling of the jury and stated the substituted defendant's case to the jury, and on behalf of the substituted defendant objected to the introduction of any evidence whatever, was sufficient to warrant the court in the presumption that they also represented the Director General of Railroads in this particular case, and no claim is now made to the contrary. This being true, their conduct in permitting the jury to be impaneled and sworn, and stating the case to the jury, evidenced an intent and willingness on their part, as counsel for the substituted defendant, to proceed with the trial of the issues joined, without any alteration or change in the pleadings.

But, even if this objection were made prior to the impaneling of the jury and the statement of the case, as it appears from the opinion of the trial judge on the motion for a new trial may have been done, nevertheless it was without merit. Counsel, not content with the action of the court in overruling the motion to substitute as defendant the Director General of Railroads, perpetuated the object and purpose of that motion in the second defense of its answer, and averred as a defense that said William G. McAdoo, Director General of Railroads, should be substituted as a defendant. This averment was in effect a continuing demand that the court should correct any error it may have made in the overruling of this motion, and order the substitution. It would therefore seem that counsel is hardly in position to complain of the court doing the very thing it was still insisting the court should do.

The third defense of the answer, not only denied negligence on the part of the Erie Railroad Company or the Director General of Railroads, his agents and employes, as heretofore stated but also averred that Dr. Smith was guilty of specific acts of negligence directly contributing to his own injuries. Counsel, although more than a year has elapsed since the trial, has not suggested, and the court is unable to conjecture, what other defenses might have been available to the substituted defendant. The same counsel that represented the substituted defendant in the trial of this action had then had full and fair opportunity to investigate the facts of this case, and to procure the evidence necessary to establish these defenses....