Norfolk Southern Ry. Co. v. Davis Frozen Foods

• Citation: 195 F.2d 662
• Decision Date: 01 April 1952
• Docket Number: No. 6376.,6376.
• Parties: NORFOLK SOUTHERN RY. CO. v. DAVIS FROZEN FOODS, Inc.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

195 F.2d 662 (1952)

NORFOLK SOUTHERN RY. CO. v. DAVIS FROZEN FOODS, Inc.

No. 6376.

United States Court of Appeals Fourth Circuit.

Argued March 10, 1952.

Decided April 1, 1952.

John M. Simms and Robert N. Simms, Jr., Raleigh, N. C. (Robert N. Simms, Raleigh, N. C., on brief), for appellant.

Murray Allen and Franklin T. Dupree, Jr., Raleigh, N. C. (Archibald Craige, Winston-Salem, N. C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

PARKER, Chief Judge.

This is an appeal from a verdict and judgment for defendant in an action by the Norfolk Southern Railway Company to recover damages alleged to have been sustained as a result of a truck's colliding with a trestle bridging the underpass of a state highway at Bailey, North Carolina and dislocating plaintiff's railroad track. The owner of the truck, Davis Frozen Foods, Incorporated, is the defendant in the action. Plaintiff contends that the collision with the trestle was due to negligent operation of the truck and resulted in the wrecking of one of its freight trains. Defendant denies negligence in the operation of the truck and pleads contributory negligence on the part of plaintiff in failing to provide adequate warning signs on the underpass and in operating the train which was wrecked.

The case was submitted to the jury under five issues, the first relating to negligence of the defendant, the second to contributory negligence of plaintiff, the third to proximate cause, and the others to damages. While the first issue submitted was in the form, "Was the damage sustained by plaintiff caused by the negligence of the defendant?", the jury was instructed to find under that issue merely whether the negligence of defendant resulted in dislocating the track. Under the third issue, they were directed to find whether, notwithstanding this negligence, the plaintiff in the exercise of proper care could have avoided the wrecking of the train. This issue was directed to the contention that the negligence of the defendant was not the proximate cause of the wreck but that the proximate cause was the supervening negligence of plaintiff. The plaintiff asked a directed verdict as to each of the issues, which was denied. The jury answered the first issue "No" and, under the direction of the court, did not answer the other issues.

While much space was devoted in the plaintiff's brief to a discussion of the question as to whether the verdict on the first issue should have been set aside as contrary to the weight of the evidence, it is well settled that the granting of a new trial on this ground is a matter resting in the sound discretion of the trial judge which may not be urged upon appeal, in the absence of abuse of discretion. Kirstner v. Atlantic Greyhound Corp., 4 Cir., 190 F.2d 422. The questions really before us are (1) whether it was error to refuse to direct a verdict on the first issue as interpreted by the judge's charge; (2) whether it was error to submit the second and third issues; and (3) whether evidence as to warning signs placed at other underpasses beneath plaintiff's tracks was properly admitted.

On the first question, we think that there was error in not directing a verdict for plaintiff upon the first issue, as we are of opinion that the evidence so clearly established that the dislocation of the tracks was due to negligence on the part of the driver of the truck that reasonable men could entertain no doubt about the matter. The evidence shows that the underpass, which was built by the State Highway Commission beneath the plaintiff's tracks, had a clearance of only 9.1 feet. Defendant's truck was 9½ feet high. There was no clearance sign on the trestle over the underpass, but by the side of the road some disstance away was a warning sign, which the Highway Commission had erected, partly obscured by weeds, stating that the clearance was 8½ feet. The driver of the truck states that he did not see this sign, but he had passed through the underpass before when driving a smaller truck and knew that the clearance was low. He says that he did not think about being in a larger truck on this occasion until he was right at the underpass and that he then put his foot on the brakes just as the top of the truck struck the trestle. Asked why he did not think of the fact that he was driving the larger truck, he stated that he just was not thinking. On this evidence reasonable men could not differ as to his negligence in running into the trestle. The low underpass was before him, he knew or should have known that he was driving a high truck and to drive such a truck into the low underpass without stopping to ascertain whether or not he could safely make the passage or in forgetfulness of the kind of truck he was driving is certainly failure to exercise that care of a reasonably prudent man which the law requires. "The law does not excuse thoughtlessness". Fox v. Texas Co., 180 N.C. 543, 105 S.E. 437, 438.

Likewise, we think that reasonable men could not differ as to the fact that the collision was the cause of the dislocation of the tracks. The rails were spiked to cross ties, which in turn were bolted to iron I beams which rested on timbers supported by piling. The top of the truck struck one of the I beams with force sufficient to cause the crumpling of the metal top of the truck across its entire front. One hour afterwards, when the wreck occurred, the trestle, including the I beams and cross ties as well as the rails, was found out of line just as though it had been shoved over by the collision. Nothing had occurred in the meantime to throw it out of line and, although the matter was carefully investigated by both parties, nothing was found except the collision to account for the dislocation. Buckling of the tracks as a result of heat expansion of the metal rails is suggested; but the wreck occurred in the morning and there is no evidence of excessive heat at that time. Furthermore, it is too great a strain upon the credulity of reasonable men to ask them to believe that heat buckling should have occurred on a three hundred mile line of railroad at the one place which had just been struck by the negligently driven truck. Testimony of the driver of the truck that the truck struck lightly and testimony that he and another looked up at the trestle and did not notice any dislocation has no probative value in the light of the other evidence in the case. Atlantic Coast Line R. Co. v. McLeod, 4 Cir., 11 F.2d 22, 23.

We think, therefore, that when the question propounded by the first issue was limited, as it was by the judge, to the question as to whether the dislocation of the track was due to the negligence of the truck driver, the jury should have been instructed to answer the issue "Yes". The fact that the burden of this issue rested upon the plaintiff is immaterial; for the rule is well settled that the court, upon request, should direct a verdict in favor of the party having the burden of proof if the evidence establishes the facts in his favor so clearly that...