Pennsylvania Co. v. Clark

• Decision Date: 08 June 1920
• Docket Number: 3370.,3369
• Citation: 266 F. 182
• Parties: PENNSYLVANIA CO. v. CLARK (two cases).
• Court: U.S. Court of Appeals — Sixth Circuit

266 F. 182

PENNSYLVANIA CO. v. CLARK (two cases).

Nos. 3369, 3370.

United States Court of Appeals, Sixth Circuit.

June 8, 1920

[Copyrighted Material Omitted]

Union C. De Ford, of Youngstown, Ohio (Harrington, De Ford, Heim &amp Huxley, of Youngstown, Ohio, on the brief), for plaintiff in error.

D. F Anderson, of Youngstown, Ohio, for defendants in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

KNAPPEN Circuit Judge.

Mrs. Clark, while a passenger for hire on the Pennsylvania Company's train, was injured by the collision of the engine with a large boulder which had become detached from a high embankment closely adjoining the track and had fallen upon or close to the track, thereby causing the derailment of the greater part of the train. She sued to recover damages for her personal injuries. Her husband also sued for loss of services and expenses incurred and paid by him on account of the injury to his wife. The suits were consolidated and tried together, and there was verdict and judgment in favor of each plaintiff. The writs are to review the respective judgments.

The petition in each case alleges that on the date of the collision defendant 'caused and permitted a certain large boulder to become dislodged from the side of its railroad embankment, and permitted the same to fall and remain upon its said track, and that no proper inspections were had or obtained by defendant in order to discover and remove said obstruction, all of which defendant well knew, or in the exercise of the highest degree of practicable care ought to have known'; further, that when defendant's passenger train, on which Mrs. Clark was a bona fide passenger, was passing 'along said line' at a place stated, 'defendant then and there permitted said train to come into a violent head-on collision with said obstruction upon said track, bringing said train to such a sudden stop that this plaintiff was thrown' etc., thereby suffering certain described injuries. The petition further avers that the injuries were the direct and proximate result of defendant's gross negligence and carelessness (1) in causing and permitting the train to be wrecked; (2) in causing and permitting the boulder to be and remain upon the track; (3) in failing and neglecting to remove the obstruction from the track; (4) in failing and neglecting to make proper inspection of its track and roadbed to discover the obstruction thereupon. The answer in each case admitted that the train upon which Mrs. Clark was riding 'came into contact with an obstruction upon the track,' but denied that the obstruction was caused in the manner alleged.

Upon the trial a prima facie case for plaintiffs was presented by way of proving the collision of the train with the boulder and the damages suffered by the respective plaintiffs. Mrs. Clark's freedom from negligence is beyond dispute. At the conclusion of the plaintiffs' testimony the defendant moved for direction of verdict in its favor. The motion was overruled. Defendant then presented its testimony, thereby waiving that motion. At the close of all the testimony, defendant's motion for direction of verdict was renewed and overruled.

1. Defendant introduced testimony to the effect that while the train was running at about 50 miles an hour the engine collided with the boulder, which had become dislodged from a high wall of slate and shale closely bordering the track. The witness said 'it came from about 25 feet up from the embankment, a kind of slate let loose from the bottom. ' The boulder was estimated by one witness to be about 8 feet long, 4 feet in diameter, and 2 feet thick, and by another as a little larger. Its weight was estimated at from 2 or 3 tons up to 10 tons. After colliding with the boulder, the train is said to have run its length before coming to a stop. There was testimony that the boulder did not collide with the pilot, but with the front of the engine, tearing off its side at a distance of several feet from the ground, as well as the cab. Defendant's counsel argue from this that the boulder was not on the track at the time of the collision, but was in the act of falling from the embankment. If true, there was merely a question of variance between pleadings and proofs. No such question was raised on the trial, and had it been the court could and should have allowed whatever amendment of petition was necessary to meet the proofs. Pennsylvania Co. v. Whitney (C.C.A. 6) 169 F. 572, 577, 95 C.C.A. 70; Pennsylvania Co. v. Cole (C.C.A. 6) 214 F. 948, 950, 131 C.C.A. 244; Valentine v. Quackenbush (C.C.A. 9) 239 F. 832, 834, 152 C.C.A. 618. Defendant's plea is inconsistent with counsel's contention, and it was not plainly impossible for a boulder of the size stated to collide with the front and side of the engine, even had it reached the ground before it was struck.

The basis of the contention that verdict should have been directed for defendant is that there was no evidence of defendant's negligence. Wholly apart from the doctrine of res ipsa loquitur, hereafter referred to, we think defendant's testimony presented a question for the jury whether defendant discharged its full duty in guarding against accidents such as this. It appeared from the testimony of the section foreman that the embankment was close to the track, was more than 100 feet high, was in considerable part composed of slate and shale rock, always liable to fall, especially in freezing and thawing weather, and requiring actual testings of the face of the rock from time to time by a man let down with ropes, 'to find what is loose and report it to the supervisor; he tells me to go ahead, and tells me to take it down'; that such testings had not been made for about two months before the accident, although there had been freezing and thawing weather, which 'is a great deal more dangerous than in open weather. It demanded very frequent examinations. I could make an examination to-day, and in a day or so after that, if we had freezing and thawing weather, pieces might fall.' While the foreman thought he had made an 'examination' a week before the accident, he had no record even of that. The kind of examination did not appear, nor whether it was more than an ocular view from the ground, in the course of the usual track work, nor whether sufficient to disclose whether or not the rock was loosening. The motion to direct verdict was thus properly overruled, apart from the question of negligence in the construction and care of track and the operation of the train.

But we think defendant's motion properly denied for another reason: As said in Gleeson v. Virginia Midland R. Co., 140 U.S. 435, 443, 11 Sup.Ct. 859, 862 (35 L.Ed. 458):

It is the 'settled law in this court that the happening of an injurious accident is in passenger cases prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care) the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight. ' ^[1]

Counsel concede that an allegation of the derailment of the train, without averments of negligence as a proximate cause of the resulting injuries, 'clearly would have stated a prima facie case against the defendant below requiring it to produce evidence as to the causes in explanation of the accident. ' It is contended, however, that plaintiff did not allege the derailment of the train, nor plead general negligence in causing or permitting the accident, but merely pleaded specific acts of negligence on the part of the carrier, and therefore that the doctrine of res ipsa loquitur does not apply.

Assuming that counsel's construction of the petition is correct his conclusion is supported by a number of authorities, including Midland Valley Ry. Co. v. Conner (C.C.A. 8) 217 F. 956, 133 C.C.A. 628, White v. Chicago G.W.R.R. Co. (C.C.A. 8) 246 F. 427, 158 C.C.A. 491, and The Great Northern (C.C.A. 9) 251 F. 826, 829, 163 C.C.A. 660. In fact neither Railway Co. v. Conner, supra, nor White v. Railway Co., supra, was a passenger case; and in The Great Northern, supra, the accident was caused by the plaintiff's slipping upon the bathroom floor, the sides of which sloped toward the center for the purpose of drainage. But assuming, for present purposes at least, that these cases were rightly decided, they do not help defendant, for we think the petition, fairly construed, includes a charge of general negligence, at least in permitting collision between the train and the boulder. Indeed, it might fairly be said that...