Patterson v. Pennsylvania Railroad Company

Decision Date05 December 1956
Docket NumberNo. 12789,12790.,12789
Citation238 F.2d 645
PartiesAlice PATTERSON, Administratrix of the Estate of Harry G. Patterson, Jr., deceased, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, a Pennsylvania Corporation, Appellee, CITY OF DETROIT, a municipal corporation, Appellant, v. PENNSYLVANIA RAILROAD COMPANY, a Pennsylvania Corporation, Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

James A. Markle, Detroit, Mich., for Alice Patterson, Admx. etc.

Frederick E. Byrd, Detroit, Mich., for City of Detroit.

A. D. Ruegsegger, Detroit, Mich., Dyer, Meek, Ruegsegger & Bullard, Detroit, Mich., on the brief, for Pennsylvania R. Co.

Before MARTIN, MILLER and STEWART, Circuit Judges.

MARTIN, Circuit Judge.

In an action for damages for death by wrongful act, Alice Patterson, as administratrix of the estate of her deceased husband, Harry G. Patterson, Jr., was awarded $40,000 by the verdict of a jury and judgment was duly entered thereon against the defendant railroad company.

Upon conclusion of all the evidence in the case, the railroad company renewed its motion for a directed verdict made at the close of appellant's submission of evidence. The court reserved judgment on the motion and, in a comprehensive charge, submitted the case to the jury.

In addition to its general verdict, the jury, in answer to special interrogatories submitted at the request of the defendant, found that the bell of defendant's engine was not ringing and its whistle was not sounding as the train approached the Dey Street crossing, at which intersection a steamroller, owned by the City of Detroit and operated by appellant's decedent, was struck by the engine. Patterson died of injuries sustained in the collision. The jury answered further that appellant's decedent was performing duties which, in the course of his employment as a roller operator for the city, necessitated his presence in and about the crossing.

Nearly ten and one-half months later, the trial judge set aside the verdict of the jury and the judgment which had been entered thereon and rendered judgment notwithstanding the verdict in favor of appellee railroad company.

A separate action brought against the railroad company by the City of Detroit for damages to its steam roller was consolidated for trial with the Patterson case and resulted in a jury verdict in favor of the City for $1,000. The judgment entered on that verdict was set aside simultaneously with like action in the Patterson case, and judgment non obstante veredicto was entered in favor of the appellee railroad company. The appeals of the administratrix, Alice Patterson, and of the City of Detroit have been heard and considered together.

Our beginning point is the settled rule that, on a defendant's motion for directed verdict or on motion for defendant notwithstanding the verdict, the facts must be viewed in the light most favorable to the plaintiff and all conflicts in the testimony must be resolved in the plaintiff's favor. Brunswick-Balke-Collender Co. v. Foster Boat Co., 6 Cir., 141 F.2d 882; Thurkow v. City of Detroit, 292 Mich. 617, 291 N.W. 29.

We shall undertake to state succinctly the material facts. Appellant's decedent was in the employ of the City of Detroit as a roller operator of seven years' experience. He was attached to the city street-paving crew which, for several days prior to the accident, had been engaged in resurfacing three crossings. The Wabash Railroad Company, which owned the railroad tracks at the street crossings, had also worked a crew in repairing that portion of the street crossings located between the rails of the railroad tracks. The railroad crew had finished its work the day before Patterson met his fatal injuries. The city paving crew had been working at the crossing where the accident occurred for several days prior thereto.

Michigan law requires that, if heavy equipment is to be moved over railroad tracks, notice shall be given to the railroad company. Section 752.501, C.L. Mich.1948. The supervisor in charge of fixing gradings and sidewalks for the City of Detroit testified that notice had been given the Wabash Railroad (owners of the tracks) that the city was going to operate steamrollers at intersections, including that one where the fatal accident occurred. The train conductor testified, however, that the train crew of the Pennsylvania Railroad involved in the accident had been given no notice of the work being done at the crossing; and, indeed, did not know of it. The Pennsylvania Railroad was using the Wabash tracks. On the early morning of the accident, appellant's decedent took the steamroller from a point where it was parked on Gates Street and went through an alley between Gates and Dey Streets to Dey Street. This alley was some 170 feet north of the railroad tracks and ran parallel to them. As the steamroller entered Dey Street from the alley, a witness, William Fett, was coming north on Dey Street in a truck, used to pick up barricades which had been placed by the paving crew on the street the day before. Baylis and Smith, members of the paving crew, were putting the barricades into the truck. The truck driver exchanged greetings with appellant's decedent, who continued toward the railroad crossing. A few minutes later, the truck driver heard a crash.

The roller operated by Patterson had been struck by the Pittsburgh Express, a Pennsylvania Railroad passenger train which was running six or seven minutes ahead of schedule. Eleven members of the paving crew were within half a block of the railroad crossing at the time of the accident. All testified that they did not hear an engine bell or whistle as the train approached the crossing. Some were positive that they would have heard the whistle had it been blowing. Railroad employees testified that the whistle on the train was loud enough to be heard three or four blocks away. Both the engineer and the fireman testified that the bell was rung and that the whistle was sounded. Thus a jury question was presented as to whether the engine bell and whistle had in fact been sounded.

The Supreme Court of Michigan has held the testimony of several witnesses, though negative in character, that from positions at which they might have heard they did not hear crossing signals sounded, to be sufficient to carry the question to the jury. Cinadar v. Detroit, G. H. & M. R. Co., 193 Mich. 38, 49, 159 N.W. 312; Crane v. Michigan Central Railroad Co., 107 Mich. 511, 65 N.W. 527; Pennsylvania R. Co. v. Ackerson, 6 Cir., 183 F.2d 662, 665. In Grand Truck Western Ry. Co. v. Heatlie, 6 Cir., 48 F.2d 759, 760, this court said that it has never accepted the doctrine in effect in some jurisdictions that evidence of the failure of witnesses to hear train signals does not make a case for the jury as against positive and affirmative testimony that signals were given; pointed to our holding that "where a witness is in a position where he would normally hear, his failure to do so presents an issue as to the existence of the fact." Detroit Southern R. Co. v. Lambert, 6 Cir., 150 F. 555; and Baltimore & Ohio R. Co. v. O'Neill, 6 Cir., 186 F. 13, were cited. See also Grand Trunk Western Ry. Co. v. Collins, 6 Cir., 65 F.2d 875, 876.

We think there was sufficient substantial evidence of negligence on the part of the defendant here to require submission of that issue to the jury.

In disposing of motions of the defendant for judgments non obstante veredicto, the district judge held that appellant's decedent was guilty of contributory negligence as a matter of law, which precluded recovery in the action brought by the administratrix and also in that brought by the City of Detroit. Accordingly, the court decided that defendant, having been entitled to directed verdicts at the conclusion of all the evidence, would be upheld in its motion to set aside the judgments on the verdicts of the jury; and that judgments in its favor would be entered in accordance with its previous motion for directed verdicts.

Appellants aver that this action of the district court was erroneous. They say that the operator of a ten-ton street-paving roller, being used to pave approaches to an unprotected railroad crossing, was not guilty of contributory negligence as a matter of law, in being struck by a Diesel engine which gave no warning of its approach by sounding either a bell or a whistle. They emphasize the fact that the train was running ahead of schedule.

The record discloses evidence from which the jury could deduce that, at the time he was killed, appellant's decedent was required in doing his work to bring his steamroller close enough to the railroad tracks to be struck.

By agreement, the jury was taken to the scene of the accident and could ascertain the view which Patterson had from his operator's seat twelve or thirteen feet from the front of the roller. They observed a train go by on the same track. They were shown a roller identical with that being used by the decedent and could see its cumbersome size and method of operation. They could see that, in order to roll the surface next to the railroad track, the operator of the roller would have to extend a part of it onto the track. They could also observe that the operator had to look down in doing his work, and perhaps even to lean over in order to see the area which he was rolling. There was testimony that the pavement near the crossing appeared to have been re-rolled on the morning of the accident.

The trial judge stated in his opinion that "there was sufficient competent evidence to submit to the jury on the issue as to whether Patterson was working on the tracks"; but he said elsewhere in his opinion that the "same rule would apply at this unprotected crossing to a workman as to a pedestrian * * *"; and that, though not chargeable with negligence merely because he proceeded to the tracks under the circumstances, Patterson "assumed a much greater responsibility for his own protection and was...

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