Norfolk & W. Ry. Co. v. Gillespie

• Decision Date: 17 July 1915
• Docket Number: 1309.
• Parties: NORFOLK & W. RY. CO. v. GILLESPIE.
• Court: U.S. Court of Appeals — Fourth Circuit

224 F. 316

NORFOLK & W. RY. CO. v. GILLESPIE.

No. 1309.

United States Court of Appeals, Fourth Circuit.

July 17, 1915

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

W. J Henson and Roy B. Smith, both of Roanoke, Va. (McCormick & Smith and Jackson & Henson, all of Roanoke, Va., and F. Markoe Rivinus and Theodore W. Reath, both of Philadelphia, Pa., on the brief), for plaintiff in error.

Barnes Gillespie, of Tazewell, Va. (W. H. Werth and Greever & Gillespie, all of Tazewell, Va., on the brief), for defendant in error.

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

WOODS Circuit Judge.

The defendant's freight train was derailed on June 8, 1913, near Cleveland, Va., and the engineer, A. F. Gillespie, was killed. In this action his administratrix recovered judgment on these charges of negligence on the part of the railroad company: (1) Requiring the engineer by its schedule to run at a dangerous rate of speed around a curve in violation of its own rule laying down a lower speed as safe; (2) failing to protect the train by a guard rail on the curve; (3) allowing a low joint or uneven place in the track, especially dangerous on a curve; and (4) failing to have the outside rail sufficiently elevated.

The defendant's first position is that the court should have sustained the demurrer to the seventh count, brought into the declaration by amendment. The allegations of this count are: (a) That the defendant owed the duty of making reasonable rules for the speed of the trains over the curves, so as to make the operation of its trains safe to its employes, and that in performance of this duty it did make a rule requiring a speed of 15 miles an hour, 'in order that said employes might operate and run said freight trains over said curves with reasonable safety to themselves'; and (b) that the defendant required Gillespie, the deceased, as one of its engineers, to run freight trains at a greater rate of speed than it had fixed as reasonably necessary for safety on the curves, and that the derailment was due to this required speed. This means that the rule limiting speed to 15 miles an hour was necessary for the reasonable safety of the train, and that the defendant required a speed greater than that which was in fact, and which had been declared by the defendant, necessary to secure safety. Thus interpreted, the count alleges actionable negligence in requiring unsafe speed over the curves as the proximate cause of the death of the engineer. The demurrer was therefore properly overruled.

The numerous objections to the exclusion and admission of testimony are not well founded. The tendency of the courts is to enlarge the sphere of discretion of the trial judge in the exclusion and admission of testimony, and a judgment should not be disturbed for error in his rulings, unless the error is clearly shown to be materially prejudicial.

Combs, who had been a railroad fireman, was allowed to say that such rocking of the tender as that which he saw just before the accident, as he stood about 75 to 100 feet away, would result from a low joint in the track. The objection that he was not qualified to speak on the subject is not well taken, for he testified that he had run as a fireman for some time, and therefore he had had the opportunity to observe the effect of low joints. In showing his qualification to speak on the subject, it was clearly competent for this witness to testify that low joints were common; for, if they were common, he had had the greater opportunity to observe the effect produced by running a train over them.

The question put to the witness Dye, whether he regarded it reasonably safe for the trains to run over these curves without guard rails, was excluded; but it was afterwards put and answered by the witness. This witness, in saying, 'I would start with guard railing 10-degree curves, and go up from them, ' clearly meant that he thought curves of 10 degrees or more required guard rails.

The witnesses, J. H. Lynch, roadmaster, and J. R. Patrick, section foreman, were allowed to express their opinions as to the degree of curve which required a guard rail. In view of the experience and training of these men in keeping the track safe, in observing wrecks and their causes, the effects of curves and the speed of trains over them, and the effect of guard rails, it cannot be said to be error of law for the trial judge to admit their opinions on the point, though they may not have been based on scientific knowledge.

There was no reversible error in striking out the answer of the witness Antrim as to the life expectancy to which he referred being based on a risk, not hazardous or preferred, for the witness afterwards testified fully on the subject.

The testimony of C. B. Davis, a conductor, as to a fair rate of speed for a freight train, may have been immaterial, as the defendant contends; but we do not perceive how it could have confused the jury.

The most important assignment of error is the refusal of the District Judge to direct a verdict at the close of all the evidence.

The rule alleged by the defendant to have been adopted for the safety of its employes requires freight trains to be run on a straight track at a speed not exceeding 20 miles an hour and on curves not exceeding 15 miles an hour. There was testimony adduced from a number of witnesses familiar with the subject that other railroads had rules requiring the same limits and in some instances even lower speed. There was evidence tending to show that, contrary to this rule of safety, the railroad company's schedule required a higher speed than that prescribed by the rule, and that the usual speed on this curve was 20 to 25 miles an hour. It is true the defendant had the testimony of a number of witnesses to the effect that a speed of 20 to 25 miles an hour on the curve was safe. But its own rules of safety, and the rules of other railroads requiring for safety a lower speed, made an issue of fact for the jury as to whether the speed required by the schedule was reasonably safe. 1 Labatt on Master and Servant, 16a, and authorities cited. The defendant's evidence that the engineer was running at a speed greater than that required by the schedule, and the opposing evidence that the speed was not in excess of the usual schedule speed, also made an issue of fact for the jury as to whether the derailment was caused by the negligence of the engineer in voluntarily running at an unusual and unnecessary speed.

To show probable contributing causes of the derailment of the train running at a speed alleged to be unsafe, the plaintiff introduced evidence which it is insisted tended to prove that safety required a guard rail at the curve which had not been supplied, that the outside rail was not sufficiently elevated, and that there was a low joint in the track. If it be assumed that a guard rail would not be necessary on such a curve as this for the safety of a train running at the speed of 15 miles an hour prescribed by the rule, there was evidence to the effect that a guard rail should be put on such a curve when the trains were run at a speed as high as that required by defendant's schedule at this place.

The court was requested to give the following instruction:

'The court instructs the jury that there is no sufficient evidence in this case to justify them in finding a verdict for the plaintiff under count 4 in the original declaration, which alleges that the track and roadbed upon the

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