Norfolk & W. Ry. Co. v. Birchett

• Decision Date: 15 July 1918
• Docket Number: 1597.
• Citation: 252 F. 512
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: NORFOLK & W. RY. CO. v. BIRCHETT.

252 F. 512

NORFOLK & W. RY. CO. v. BIRCHETT.

No. 1597.

United States Court of Appeals, Fourth Circuit.

July 15, 1918

William Hodges Mann, of Petersburg, Va., and F. S. Kirkpatrick, of Lynchburg, Va. (F. Markoe Rivinus, Theodore W. Reath, and Joseph I. Doran, all of Philadelphia, Pa., on the brief), for plaintiff in error.

Randolph Harrison, of Lynchburg, Va. (Harrison & Long, of Lynchburg Va., on the brief), for defendant in error.

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

KNAPP Circuit Judge.

Defendant in error, plaintiff below, recovered judgment, entered upon the verdict of a jury, for injuries received by her while a passenger in a sleeping car on one of the railway company's trains. The accident occurred on the morning of January 12, 1916, just after the train west bound had left the station of East Radford, Va., and plaintiff's account of what happened is this:

'I got up early, and went to the dressing room, and made my toilet, and had completed it, and was seated in the chair just putting a few finishing touches to my waist or something, when this terrific lurch came. I never knew what it was, but that just threw me across the room. In catching myself, I suppose I threw this arm (indicating the left) back, and it broke it. It was just as though cars were coming together. That is the way I felt about it; a great lurch. * * * Q. You say, when this lurch came, this violent lurch that you have described, that it threw the cars together? A. Yes, sir; it seemed so to me. I went with a crash. It was that kind of a lurch; just as if some one would take a football and kick it-- I went with just as much force across the car. It all occurred very suddenly. I was taking due precaution, and I was seated in the chair firmly seated there. It was a chair that is placed in the ladies' dressing room for the use of ladies. As I remember, the chair was turned over. I remember seeing the chair out of its natural position. I was suffering, and had fainted, and don't remember what position the chair was in, except that it was over. * * * I had completed my toilet before the accident happened, except for a few finishing touches, to place a ribbon or a piece of lace or something while I was sitting in the chair. I cannot state now how I was sitting in the chair, except that I was sitting there firmly. I know that is a fact, because I am cautious, very cautious. I am a good traveler, and have traveled a good deal, and this is my first serious accident. * * * I have never had an attack of vertigo in my life. I am as steady as can be. I could not explain how the accident occurred, or how I was thrown out of the chair-- only a certain thing threw me out of my chair. * * * My height is 5 feet 2 1/2 inches, and my weight 145 pounds. As to my strength, it is very good, very good.'

The only negligence charged in the declaration or asserted at the trial was the unskillful and careless handling of the train, which is alleged to have caused the plaintiff's injury. It is not questioned that the roadbed and appurtenances were in good condition at the time and place, that the train equipment, including engine and cars with their various appliances, was also in good condition, and that the engineer and conductor in charge were rated among the best in the company's service. The sleeper in which plaintiff was riding was of recent construction, described as 'one of the best class of cars the Pullman Company makes. ' There was no 'accident,' in the sense that anything broke or gave way or got out of order. The train went on, after plaintiff was hurt, the same as before, and no one else on board seems to have suspected that anything in the least unusual had happened, until she summoned the porter by ringing the dressing room bell. In short, there is not the slightest corroboration by testimony or circumstance of her statement of a 'terrific' or 'violent' lurch of the car, indicating improper handling of the train. On the contrary, we think it was proven as conclusively as the nature of such a case admits that nothing of the kind occurred. The engineer, who first heard of the accident at the next stopping place, an hour or so later, testified that the train was operated in the customary manner; that he could tell in the engine 'if there was a run-up or a run-out'; that is, as he explained, the 'slack' running up or running out; and that when informed of plaintiff's injury he could not recall that anything of the kind had happened that morning. The dining car steward, who learned of the occurrence within a few minutes, when he was going through the sleepers to announce breakfast, says that none of the china or glassware was broken or disturbed, as would be the result of a violent jerk or lurch. The train conductor, the two brakemen, the Pullman conductor, and the Pullman porter, all of whom knew of the accident almost immediately, testified that no unusual lurching or jolting of the car had been observed. To the same effect was the testimony of five passengers, four of whom were in the same sleeper with plaintiff and heard of her injury shortly after it happened. Not only do these witnesses say that nothing at all uncommon had been noticed, but their detailed statements of what they were doing at or about the time--for example, two of them had been shaving-- tend strongly to show that any violent or unusual lurching of the car would have attracted their attention. In a word, so far as negative testimony could disprove what the plaintiff says was the cause of her accident, and it is not perceived that the case made by her could be otherwise met, the fact was established beyond reasonable doubt that she had the misfortune to be injured, not by an extraordinary or exceptional lurching from which negligent handling of the train might be inferred, but rather and solely by one or another of those swaying or tilting movements, however described, that the most skillful operation cannot avoid.

Moreover, according to the testimony of several witnesses, the plaintiff did not at the time claim that her injury was caused by any violent or unusual lurch of the car. The porter, whom she summoned to the dressing room, quotes her as saying: 'I have hurt my arm, porter. ' The train conductor says:

'I asked her how she fell, how she got hurt, and her remark was she didn't know; that she was in the ladies' dressing room sitting in a chair, and the next she knew she was in her berth; that she didn't know how she came to be hurt or to fall at all.'

One of the brakemen states that he heard the conductor ask her how she got hurt, and gives substantially the same version of her reply. The company's surgeon, who in response to a telegram boarded the train at its next stop in order to attend her, testified that he wrote down at the time her answers to certain questions, and produced his memorandum, which showed the following reply to the inquiry as to how the accident occurred:

'I had been to the toilet and was sitting in the chair. As the train was getting under headway from the last stop, I was thrown from the chair against the radiator and injured my left arm.'

He further testified that:

'She did not complain to me of any rough handling, or excessive speed, or improper service on the part of the railway company.'

In this connection it may be noted that the plaintiff's case, so far as the accident is concerned, rests wholly on her own testimony; her only other witness being a physician, who described the condition of her arm at the time of the trial. On cross-examination she was asked if she did not make to the surgeon the statement just...