Livingston v. Atlantic Coast Line R. Co.

• Decision Date: 16 October 1928
• Docket Number: No. 2723.,2723.
• Parties: LIVINGSTON v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

28 F.2d 563 (1928)

LIVINGSTON v. ATLANTIC COAST LINE R. CO.

No. 2723.

Circuit Court of Appeals, Fourth Circuit.

October 16, 1928.

D. E. Ellerbe and C. T. McDonald, both of Florence, S. C., for appellant.

F. L. Willcox, of Florence, S. C., for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and SOPER, District Judge.

NORTHCOTT, Circuit Judge.

The plaintiff brought an action in the court of common pleas for Dillon county, South Carolina, against the railroad company, for personal injuries suffered while a passenger on the defendant's train. The case was subsequently removed to the District Court of the United States for the Eastern District of South Carolina, at Florence, where it was tried. The court below, on motion, directed a verdict for the defendant, from which action of the court this appeal was taken.

The plaintiff entered the train at Florence, S. C., to go to Fayetteville, N. C. He went into the smoking car, where he remained for about an hour, reading a newspaper. The accident happened before the train reached Dillon, S. C. A short time before the train reached that station the plaintiff went to the toilet, where, according to his testimony, he stayed between 8 and 11 minutes. As he stepped out of the toilet, he made a quick step, closing the door behind him. There was a rocking of the train at this time, and the plaintiff testified that he accidentally stepped upon a banana peeling and fell against the lavatory on the other side of the aisle. In his fall, his eyeglasses were broken, and some of the glass entered one eye. As a result of it, the eye was so seriously injured that it was necessary to remove it.

Apparently, the banana peeling must have been on the floor of the car, in the aisle between the toilet, on one side, and the lavatory, on the other. Plaintiff speaks of the lights in the train as a little dim and flickering. At any rate, they must have been sufficiently clear and bright to have permitted the plaintiff to read the newspaper. The accident happened after 7 p. m., at which time the plaintiff boarded the train on February 19, 1927. The plaintiff saw other trash on the floor of the car, orange peelings, peanut hulls, and other banana skins. He said the car did not look as if it had been swept in a day or two. He did not see anybody in the smoker eating bananas while he was there, and could have seen them if they had been doing so. He did not see the banana peeling when he went into the toilet, and does not know whether it was there or not. The testimony of the plaintiff was corroborated to some extent by another witness, who was a passenger on the train in the smoker. He first saw the plaintiff after the accident, and heard some discussion about the plaintiff slipping on a banana peeling, and saw the peeling on the floor in front of the toilet door. A conversation was taking place at the time between the train porter and the plaintiff. This witness did not see any other banana peelings.

The colored porter said that, as the train was going into Dillon, he got up to go back to announce the station. He had been talking to the plaintiff, who said that he was going to the toilet, and who went there. The porter next saw the plaintiff as the train was leaving Dillon. From this testimony, it would appear that the plaintiff proceeded to the rear of the car just ahead of, or just behind, the porter, as the train was approaching Dillon. After the train left Dillon, the porter went back to the smoker and saw the plaintiff come out of the toilet. There had been a stop at the station of about three minutes. The porter testified that plaintiff said he had broken his glasses in the toilet, but said nothing about the banana peeling or stumbling outside, but did complain about hurting his eye badly. The porter further testified that the train was in good condition and clean. The testimony of the porter was corroborated by the agent of the news company and the conductor of the train, neither of whom saw the banana peeling or any trash in the aisle of the car.

Assuming that there was a banana peeling on the floor, in the proximity of the toilet and lavatory, the evidence does not show when it was placed there, or how long it had been there before the accident. There is the evidence of the plaintiff that there was a considerable quantity of trash in the car; that the car looked like it had not been cleaned for two days. This expression of opinion as to the length of time which elapsed since the car was cleaned is not entitled to weight, but the weight of the testimony depends upon the facts stated by the witness. Thus considered, the fact is that there was trash in the car at various points not designated, but this fact does not tend to show that there was a banana peeling at the point at which the plaintiff testifies he was thrown off his balance. The testimony as to this particular place in the car on the part of the plaintiff is that a few minutes before he had passed over it, and did not notice the banana peeling, and on the part of the defendant, from the porter of the car, that there was no banana peeling at this point when he left the car as the train approached Dillon. The question then for decision is whether the plaintiff is entitled to recover in this case, assuming that his story is true, by simply showing that he was injured by slipping upon a banana peeling which was on the floor of the car at the time that he fell, without showing how long it had been there, or that the railroad company, through its employees, had an opportunity to notice the presence of the peeling and to remove it.

The cases chiefly relied upon by the plaintiff, are Lindsey v. Atlantic Coast Line R. Co., 173 N. C. 390, 92 S. E. 166, a North Carolina case, and Long v. Atlantic Coast Line R. Co., 238 F. 919, a decision of this circuit. The plaintiff in the Lindsey Case was injured in the smoking car of the train, when he arose from his seat to get a drink of water, by stepping on a loose bolt in the floor, of the kind used in bolting the rails of the track together. Such bolts are frequently carried by track men on the train. The defendant offered evidence tending to show that the bolt must have suddenly rolled into the aisle, and that there was not time for the defendant to discover and remove it. The court held that the plaintiff made out a prima facie case of negligence when he showed that the bolt was on the floor of the aisle, and the burden was not on him to show how it happened to be there, or how long it had been there. The rule applicable is that the carrier is obliged to exercise the highest degree of care for the safe conveyance of passengers, and, where the passenger is injured by an apparent act of negligence while in the care of the carrier, the latter must rebut the case by evidence tending to prove that it exercised such a degree of care. The cases cited by the Supreme Court of North Carolina, however, are those in which the injury was caused by the breaking or failure of the vehicle, roadway, or other appliances owned or controlled by the carrier, and amongst them citations from the Pennsylvania courts, including Fern v. Penn. Ry. Co., 250 Pa. 487, 95 A. 590. There is also cited case of Gleeson v. Virginia Midland Railroad Co., 140 U. S. 443, 11 S. Ct. 859, 35 L. Ed. 458.

The case of Long v. Atlantic Coast Line R. Co. (C. C. A.) 238 F. 919, was one in which a...