Northern Pacific Railway Company v. Mely

• Decision Date: 13 December 1954
• Docket Number: No. 14037.,14037.
• Citation: 219 F.2d 199
• Parties: NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Appellant, v. Tillie MELY, as Administratrix of the Estate of A. E. Mely, deceased, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

219 F.2d 199 (1954)

NORTHERN PACIFIC RAILWAY COMPANY, a corporation, Appellant, v. Tillie MELY, as Administratrix of the Estate of A. E. Mely, deceased, Appellee.

No. 14037.

United States Court of Appeals Ninth Circuit.

December 13, 1954.

Cannon, McKevitt & Fraser, Spokane, Wash., Verner R. Clements, Lewiston, Idaho, for appellant.

Maury, Shone & Sullivan, Butte, Mont., Paul W. Hyatt, Lewiston, Idaho, for appellees.

Before BONE, FEE and CHAMBERS, Circuit Judges.

JAMES ALGER FEE, Circuit Judge.

The Administratrix of the Estate of A. E. Mely, deceased, brought action against the Northern Pacific Railway Company under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for wrongful death of Mely, who was employed as an engineer by the Railway. The case was tried before a jury, which awarded a verdict to plaintiff.

The engineer at the time of death was in charge of an extra train, No. 6015, consisting of four diesel units and a caboose, which left East Lewiston, Idaho, with orders to stop for the purpose of picking up additional cars at Arrow. Well within the yard limits at Arrow, the engineer, because of the high rate of speed, crashed his train into the caboose of No. 1648, which had preceded his train from East Lewiston to this point and was stationary at the time but with brakes released on the point of proceeding to the next station. Mely had violated standing Rule 93, which required him, within yard limits of Arrow, to move his engine at restricted speed, prepared to stop short of a train such as No. 1648. As a result of the collision, he was killed, as were the brakeman and conductor of No. 1648. Defendant Railway brings this appeal from the judgment for the Administratrix.

On its motion to set aside the verdict and judgment, the denial of which appellant assigns as error, Railway complained that an issue as to whether there was a rule of Railway requiring Mely be notified that No. 1648 was ahead of him was debated in the jury room, and that the verdict was based on this feature and was therefore improper.

Appellant Railway has affidavits of ten jurors who are made to relate that they would have decided the case otherwise if it were not for the improper arguments made by one of their number as to a nonexistent Rule of the Northern Pacific which required Mely to be given notice by the dispatcher of the presence of the train which had arrived ahead of him in the yards.

But the verdict of the jury in a body after instruction as to the law is binding. The common law judges placed the veil of secrecy about jury deliberations. The bailiff is sworn not to communicate with them and not to allow anyone else to do so while the case is being considered before verdict. After verdict, those who are serving in a public capacity should not be held responsible for what they did in secrecy.¹ Many courts hold that it is unethical for counsel to communicate with former jurors to discover how they stood in a particular case. In metropolitan areas where the same jurors serve for some time, it is possible to forecast a jury's verdict if their previous alignment in other cases is made plain by inquiry. An abuse in inquisitions by the staff of the prosecutor in long jury terms will show the proper jurors to be challenged in a close criminal case. The genius of the common law held the verdict was a collective arbitrament sparked by the intuitive sympathies and phatic understanding of a local community.²

Therefore, jurors cannot impeach their verdict in the manner here attempted.³ Counsel must think this Court incompetent to appraise such affidavits. The trial judge very properly gave these documents no weight or credence. All trial lawyers know that jurors, after the event, are always ready to be on the side of whoever asks them. These affidavits in this case are as standardized as the fittings of a Pullman. The particular points to which the affidavits were directed will be entirely disregarded on account thereof. In this instance we imply no censure of counsel, since it has been explained to us that they were beguiled into this situation by certain circumstances which were misleading.⁴ We do hold for future guidance that it is improper and unethical for lawyers, court attachés or judges in a particular case to make public the transactions in the jury room⁵ or to interview jurors to discover what was the course of deliberation of a trial jury.⁶

Railway also assigns as error the admission of certain evidence, the instructions given and requests refused. Four specifications of negligence were submitted to the jury. The plaintiff charged that defendant failed (1) to provide Mely with a safe place to work, (2) to give warning of obstruction and danger ahead, (3) to place men, flares or signals to give warning of the obstruction at a reasonable distance therefrom, and (4) properly to protect No. 1648 while it was in an obscured position, and to protect No. 6015 by notice as above specified and warn Mely of the obstruction of the main line track. Appropriate exceptions were taken to this submission.

There was error in this approach of the trial judge. All these specifications are variations of the requirement that the employer owes a duty to the employee to exercise reasonable care in furnishing a reasonably safe place to work. But this concept generally involves static characteristics and the physical conditions of the workshop. However, this was not in issue here under all the evidence. It was perfectly clear that a safe place to work was furnished by Railway. The roadbed, operating equipment and the trains and appliances were apparently in perfect condition. There was an adequate set of rules, which is the only other requirement of a safe place to work where there is equipment which is periodically in motion.

Railway objected that the court did not construe these written express commands as to conduct of employees. The trial court treated the case as though there were charges of common law negligence, without regard to these regulations, which are absolutely essential to the complicated operation of a modern transcontinental railroad. It is true, conduct controlled by rule might be improper and negligent even if in strict accordance therewith.⁷ But no such issue was presented here. The applicable rules were reasonable and proper under the circumstances. The evidence shows no violation of the rules by anyone except Mely himself.

Railway also objected to the failure to construe the rule which required Mely, the engineer, to have his train under control within yard limits. There was evidence that this was the sole cause of his death. But the trial court did not instruct that a violation of this rule was negligence and that, if his death resulted solely and proximately from this cause and not in part from other negligence attributable to the carrier, the Administratrix could not recover.⁸ If the jury had been given the instruction, they would have returned a verdict for Railway if they had followed the evidence. Proper exception was taken.

Railway contends its motion for directed verdict should have been granted on the ground that Mely caused his own death. Plaintiff counters with the contention that Railway was at least partly responsible for the accident. Where the injury of one employee results from the combined fault of himself and a fellow employee, then the doctrine of comparative negligence here contended for would be applicable and the damages should be divided, 45 U.S.C.A. § 53, if the death resulted in "part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works * * * or other equipment." 45 U.S. C.A. § 51.

But the record in this case did not supply a scintilla of evidence that Railway was negligent with regard to any of the equipment or roadbed or other items enumerated in the statute as above quoted.

There was no proof here of any nature which indicated a failure of Railway to notify Mely that No. 1648 was ahead of him. Under leading questions, the fireman and brakeman testified uncertainly that they were not informed of it. Of course, their interest and bias are obvious. But Mely may have been notified and decided that it had left Arrow before he got to the yard limit. There is no proof. Furthermore, no duty to warn is shown. The danger of fast movement within yard limits is known to everyone and established by the rule requiring him therein to move at retarded speed and stop short of obstruction. The yard limit was his warning.

While there was a rule requiring a standing train to send a flagman back with flares and torpedoes, this had no relation to one such as No. 1648, which was within the yard limit and protected by these positive regulations as to speed therein. The expert witness did not testify that such a rule was applicable thereto. No one intimates that it was, except counsel in argument.

There has been a doctrine that, even in the event the negligence of a fellow employee and the injured employee combined to bring about the result, the one suffering injury, which resulted from his own violation of a positive rule or an express instruction ad hoc, could not recover. It is also held that, if an injured employee has, by violation of an express order, so contributed to his injury, no one may recover in his right.⁹ Plaintiff contends that the exception¹⁰ was repealed by the amendment of the statute, 45 U.S.C.A. § 54. It is not necessary to pass upon that question, although no sanction of the argument is intended by mention thereof. Here it is clear on all the evidence in this record that neither Railway nor any of its officers, agents or employees contributed to the disaster.

Mely accomplished his own death and those of two fellow employees by a willful violation of a rule. Southern Railway v. Dantzler, 286 U.S. 318, ...