Miller v. Pennsylvania Railroad Co.

• Decision Date: 30 April 1958
• Docket Number: Civ. A. No. 1520-55.
• Citation: 161 F. Supp. 633
• Parties: Wilfred L. MILLER et al., Plaintiffs, v. PENNSYLVANIA RAILROAD CO., Defendant.
• Court: U.S. District Court — District of Columbia

161 F. Supp. 633

Wilfred L. MILLER et al., Plaintiffs, v. PENNSYLVANIA RAILROAD CO., Defendant.

Civ. A. No. 1520-55.

United States District Court District of Columbia.

April 30, 1958.

COPYRIGHT MATERIAL OMITTED

Sheldon E. Bernstein and Wilmer S. Schantz, Jr. (of Newmyer & Bress), Washington, D. C., for plaintiff Miller.

Arthur S. Feld and Charles J. Rose, Washington, D. C., for intervenor plaintiff Alban Tractor Co.

James C. McKay and George Blow, Washington, D. C., for defendant.

HOLTZOFF, District Judge.

This is an action to recover damages caused to a combined trailer, bulldozer and earth scraper, as a result of their being struck by the defendant's train at a railroad crossing on which this machinery was stalled. After a trial on the merits, the jury rendered a verdict in favor of the plaintiff Miller in the sum of $12,350; and in favor of the intervenor plaintiff, Alban Tractor Company, which had a financial interest in the equipment, for the sum of $7,250. The case is now before the Court on the defendant's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial.

The trial took place before Judge Kirkland and a jury. Unfortunately he departed this life between the time of the trial and the hearing of the motion. The Chief Judge of this Court then assigned the matter to this writer in accordance with Rule 63 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which reads as follows:

"Rule 63. Disability of a Judge. If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial."¹

Manifestly, the judge to whom such a proceeding is assigned because of the death of the trial judge, finds himself in a position of considerable delicacy, as he has to perform the somewhat invidious function of reviewing the rulings of a judge of co-ordinate jurisdiction. Moreover, under some circumstances he may be handicapped by the fact that he did not hear the evidence and did not see the witnesses and is not in touch with the atmosphere surrounding the trial. He must needs rely solely on the transcript of the proceedings. Nevertheless, the task cannot be avoided and the duty must be fulfilled if practicable.

It is well established that if the trial judge dies after the jury returns a verdict but before a motion for judgment notwithstanding the verdict or a motion for a new trial is heard or decided, another judge may pass upon such applications. The latter then becomes vested with the same broad discretion to grant or deny such motions as was the trial judge.² An exception arises only if the successor judge finds that he cannot satisfactorily perform such a function by reason of the fact that he did not preside at the trial, or for some other reason. No such unusual situation emerges in the case at bar. This case is not within the exception.

A consideration of this matter must start with the premise that rulings of the trial judge are presumed to be correct, and that the burden is on the defeated party to demonstrate the contrary. This doctrine governs appellate review. A fortiori it is applicable to post-trial motions made in the trial court.

It is also necessary to bear in mind the necessity of undertaking the task in the spirit of what is known as the "harmless error" rule, i. e., Rule 61 of the Federal Rules of Civil Procedure, which reads as follows:

"Rule 61. Harmless Error. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties." (Emphasis supplied.)

This rule is quoted and must be stressed because unfortunately its mandate, in fact its very existence, is frequently overlooked and at times even forgotten. It must not be permitted to wither and atrophy. It will not do to render purely lip service to this basic doctrine of modern administration of justice. We must not "keep the word of promise to our ear, and break it to our hope". Philosophically, rules of law are but a means to an end and not an end in themselves. Their objective is the achievement of substantial justice.

It may be interesting to observe that a parallel principle exists in English procedure in connection with appellate review. It is found in Order 39, Rule 6, of the Rules of the Supreme Court,³ and reads as follows:

"A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned; * * *." (Emphasis supplied.)

The instant case has been tried twice. At the first trial, which was conducted by this writer, the Court directed a verdict in favor of the defendant at the close of the plaintiffs' case, on the ground that no negligence on the part of the defendant had been shown. The judgment was reversed by the Court of Appeals by a vote of two to one on the theory that the evidence adduced by the plaintiffs could have "been found by the jury to have made out a case of negligence on the part of the Railroad * * * in the failure to bring the train to a stop when the peril of Miller was or should have been seen."⁴

The case was then retried before Judge Kirkland and a jury. In the light of the opinion of the Court of Appeals, the issues were submitted to the jury, which rendered a verdict for the plaintiffs as indicated. Obviously, the case is at present in a different posture than it was at the conclusion of the first trial, since the evidence for both sides has now been heard instead of only the evidence adduced in behalf of the plaintiffs. A reading of the transcript of the proceedings at the second trial indicates that there was no substantial conflict as to the salient facts. The disagreement between the parties was limited to the inferences to be drawn from the undisputed evidence and related largely to the steps that should have been taken under the circumstances by the various persons involved in the lamentable collision.

The facts are as follows. The plaintiff Miller was a grading and excavating contractor. On the day in question he was moving his machinery, which consisted of what is colloquially known as a "bulldozer", loaded on a motor-driven trailer, and an earth scraper attached to the latter. The equipment was long and heavy, its length being about 70 feet. The floor of the trailer reached lower and was closer to the ground than is true of ordinary motor vehicles. In the course of moving the equipment, the plaintiff slowly proceeded across the tracks of the Pennsylvania Railroad Company, the defendant in this action, at a grade crossing near Lanham, Maryland. This crossing was approached by a minor country road. Another route was available to the plaintiff, over a state highway, which would have afforded an opportunity to move the equipment safely over a viaduct instead of at grade. Nevertheless the plaintiff chose the former itinerary.

As the equipment was progressing through the intersection and after it had partially cleared the tracks, the front of the trailer was impaled on a slight rise in the ground, due to the fact that the clearance between the floor of the trailer and the ground was unusually small. The engine stalled. The plaintiff and his helper made frantic and energetic efforts to start the engine and to force the equipment over the obstruction, but to no avail. The watchman, who guarded the crossing, was standing at his accustomed post near the tracks, holding a manual semaphore signal, which he employed to stop drivers of crossing vehicles or to wave them across when the intersection was clear, as conditions required. Apparently he was closely observing what was happening. About forty-five seconds elapsed. Such a period of time naturally can pass very rapidly, especially under the pressure of great stress and severe strain. Then a buzzer began to sound in the watchman's shack or booth, which was located near the track. It signalled the approach of a train from the north. The watchman immediately directed the plaintiff and his helper to leave the cab of the trailer. They promptly did so, and stood helplessly at the side of the railroad tracks. Almost instantaneously, after ordering the plaintiff and his helper to a safe place, the watchman started to run along the side of the tracks, at the same time unfurling a red flag which he held in his hand, and waving it, in the hope of signalling the train to stop.

In the meantime, an express train rushing at the rate of 80 miles an hour, the authorized speed at that point, had rounded a curve located 3,190 feet north of the intersection which then first appeared in the line of vision of the locomotive engineer and the fireman. Each of them saw that there was some obstruction on the track. They assumed that a vehicle of some kind was moving over the intersection and would clear the crossing before the train reached it. A few more seconds passed, and then...