Payne v. Blevins

Decision Date21 March 1922
Docket Number1881.
PartiesPAYNE, Director General of Railroads, Etc., v. BLEVINS.
CourtU.S. Court of Appeals — Fourth Circuit

Samuel K. Funkhouser and Waller R. Staples, both of Roanoke, Va. (Staples, Cocke & Hazlegrove and Smith & Funkhouser, all of Roanoke, Va., on the brief), for plaintiff in error.

William H. Werth, of Tazewell, Va., for defendant in error.

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

WATKINS District Judge.

For convenience the plaintiff in error will be designated in this opinion as defendant, and the defendant in error as plaintiff, since they occupied these positions in the trial court and are so designated in the pleadings.

This action was instituted by A. L. Blevins, as administrator of the estate of his son, Burton Blevins, for damages for the death of the latter, who was approximately 13 years and 3 months of age. It is alleged that the death was caused by the negligent operation of one of the trains of the Norfolk &amp Western Railway Company, then in charge of the Director General of Railroads of the United States Railroad Administration. The action was brought against both the Director General and the railway company, but upon motion was dismissed as to the latter, and judgment was recovered against the former only. There is a branch line of the railway company extending from Richlands, on its main line to a coal operation at Jewel Ridge, a distance of seven miles; the line passing and serving several other coal operations between these two points. At one of these, termed Seaboard, plaintiff and his said son were living on August 29, 1918, when the injuries occurred. This branch line runs in a general northerly direction. About one-fourth of a mile north of Seaboard a wagon road extends north and south almost parallel with and near to the railroad track on the eastern side thereof, and on and immediately east of this highway are a number of small residences, the front portions of which are about 50 feet from the railroad track. From the roadway to the place of the accident there is an embankment several feet in height, leading up to the railroad, immediately west of which is a rocky cliff. From one of the aforementioned residences the partitions had been removed, and, on the night of the accident and for several nights prior thereto religious services were held therein by a sect known as the 'Holy Rollers,' whose exercises, when the train passed on that night, were characterized with considerable emotional noise; there being a general indulgence in shouting, singing, and dancing.

Both plaintiff and his son attended these services, and, at their conclusion, plaintiff testified that he saw his son pass out of the front door and walk on towards the railroad track, and that he did not see him again until he was found injured, some 3 to 5 minutes after the train passed. He further testified that 'the train passed after the church had been dismissed; just immediately the train came, and he did not come out of the church door until after the meeting was dismissed. ' Mrs. Horton, one of plaintiff's witnesses, living about 100 yards north of the church, testified that 'immediately after the train passed her house she slipped back on the porch and heard the noise of the people excited over finding the boy. ' S.W. Ball, another witness, testified that he was the first man to reach Burton Blevins in about 10 or 12 minutes after the train passed. He found the boy 'lying on the east side of the railroad track with his head against the head of the ties, about square with the track, and his feet down off the bank, lying on his side, his face north. ' Plaintiff testified that the boy was found almost directly opposite the church door, about 50 feet therefrom, 'lying with his head almost against west end of cross-ties-- end next to church-- and body nearly at right angles to track,' and that he was found from 3 to 5 minutes after the train passed. No one testified as to the movements of the boy from the time he passed out of the church until after the injury. There was a fracture of his skull, about 2 inches wide and 3 inches long, on the left side of his head just above the ear; the skull being crushed in and some of the brain being destroyed. The physicians who examined him found no other bruises or abrasions about his person. He was carried to the hospital, where, after lingering 37 days without regaining the power of speech, he died.

It is admitted 'that, at and along the tracks of the railroad north and south of the place of the alleged accident, the people of that vicinity, including all ages and sexes, and at all times, whenever they desired to do so, had for many years used said track habitually as a walkway at all hours of the day and night. ' On the night in question the train, as was its custom, had gone up the line to Jewel Ridge, delivering cars to the various coal operations along this branch line, and as it passed the church was drifting down grade at the rate of 12 to 15 miles per hour, and consisted, at this time, only of a tender, locomotive, and caboose, proceeding in the order named. The night was dark, it was misting rain, and the train was an hour or more late. In his declaration, plaintiff alleges that his intestate attended the religious services at the aforementioned church, and at their conclusion went across to the railroad track and sat down on the rail or cross-ties, and there waited for his father to come out of the church and go home; that it was long after the hour at which the engine and tender usually made its final trip, and at an hour at which it would not be expected to pass over the tracks. The allegations of negligence are to the effect:

'That while plaintiff's intestate was so sitting upon the track or cross-ties said engine and tender came along said track from some point above or north of said church, and going down grade towards Richlands at a high rate of speed, to wit, at the rate of . . . miles per hour; that said engine and tender was running with the tender in front; that it had no headlight in front, and had no brakeman or other employee, on the front end or elsewhere, to keep and maintain a reasonable lookout to discover pedestrians who might be upon the track at that hour; and that no employee anywhere on said engine or tender did in fact keep and maintain any sort of lookout to discover persons who might be on said track, and no such employee did in fact discover plaintiff's intestate on said track in time to prevent injuring him; but plaintiff alleges and avers that it was a light night, and that plaintiff's intestate could have been discovered in his situation of danger, even without a headlight, in time to have prevented his injury, had a reasonable lookout to discover him been maintained by the employees in charge of said engine and tender; and plaintiff alleges and avers that the time in question was the usual time at which said religious services had been concluded every night since the said continuous revival had been in progress.'

While it is also alleged that the train was drifting down grade, at a high rate of speed, making no noise and giving no warning of its approach, and that its approach was not discovered nor could have been anticipated by the deceased, there is no charge of negligence for failure to give signals or warning of the approach of the train. The essence of the charge is failure to discover plaintiff's intestate sitting on the track, because of neglect to maintain a proper lookout and to have such headlight in front of the train as to enable employees to discover the boy in his alleged position of peril. The accident did not occur at or near a crossing, and there is no allegation that the deceased was attempting to cross the track, or that he was walking along the track. The presiding judge held that neither the crossing signal statute (Code Va. 1919, Sec. 3958) nor the headlight statute (Code Va. 1919, Sec. 3976) of the state of Virginia was applicable to the case, but that the jury might determine whether the duty rested upon those in charge of the train, in the exercise of ordinary care towards persons who might be on or too near the track at or near the place of injury, to give warning of the approach of the train by either blowing the whistle or ringing the bell, and also that the fact that there was no reflector headlight at the front end of the train is of course a fact to be considered by the jury. There was no testimony that any bell was rung. While the testimony as to the blowing of the whistle was conflicting, it was admitted that there was no reflector headlight in front of the train, and although the engineer and fireman claimed that there were red and white lights on the tender at the front end of the train, this was disputed by witnesses for the other side. It was admitted by the train crew that the lights were insufficient to have discovered an object on the track for any considerable distance in front of the train or within time to have stopped the train after discovering such object.

It is not the province of this court to pass upon the preponderance of the evidence with reference to the negligence complained of. The declaration charges, and there was sufficient evidence to justify a verdict, that there was a failure to exercise ordinary care in the operation of the train. Upon conclusion of the plaintiff's evidence in chief, and also upon the completion of all the testimony, defendant made motions for the direction of a verdict in its favor upon several grounds, which need not be recapitulated in detail in this opinion. Among these were included the claims that there was a failure to show that the injury was caused by any act of the Director General or his agents,...

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    ...21, 155 C. C. A. 551; U. S. Director General of Railroads v Zanzinger (C. C. A. 4th Cir.) 269 F. 552, and authorities cited; Payne v. Blevins (C. C. A.) 280 F. 310; Bush v. B. & O. Ry. Co. (C. C. A. 4th Cir.) 288 F. 845 (filed March 31, 1923). "The federal case apparently most like that bef......
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    ...... 21, 155 C. C. A. 551; U.S. Director General of. Railroads v Zanzinger (C. C. A. 4th Cir.) 269 F. 552,. and authorities cited; Payne" v. Blevins (C. C. A.) . 280 F. 310; Bush v. B. & O. Ry. Co. (C. C. A. 4th. Cir.) 288 F. 845 (filed March 31, 1923). . . . .        \xC2"......
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