Rutherford v. Illinois Central Railroad Company, No. 17865.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: JONES, BROWN and WISDOM, Circuit
• Citation: 276 F.2d 330
• Parties: Raymond L. RUTHERFORD, Appellant, v. ILLINOIS CENTRAL RAILROAD COMPANY, Appellee.
• Docket Number: No. 17865.
• Decision Date: 26 February 1960

276 F.2d 330 (1960)

Raymond L. RUTHERFORD, Appellant,
v.
ILLINOIS CENTRAL RAILROAD COMPANY, Appellee.

No. 17865.

United States Court of Appeals Fifth Circuit.

February 26, 1960.

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COPYRIGHT MATERIAL OMITTED

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C. Paul Barker, New Orleans, La., S. E. Morse, Gulfport, Miss., George M. Leppert, New Orleans, La., for appellant

James L. Byrd, Jackson, Miss., Joseph H. Wright, John W. Freels, Chicago, Ill., Byrd, Wise & Smith, Jackson, Miss., of counsel, for appellee.

Before JONES, BROWN and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

This is a tort action arising out of one of those tragic accidents when a person, walking between sets of railroad tracks or on the cinder path along the side of railroad tracks, is hit and mangled by a train, and no one, including the plaintiff, knows just how the accident happened. The case was tried in the District Court for the Southern District of Mississippi, but the accident occurred in Hammond, Louisiana, and the law of Louisiana controls our decision. The able and experienced district judge directed a verdict in favor of the railroad. We affirm.

Sometime in March 1954 Raymond Rutherford, a migratory farm worker, left his home in Alabama and went to Louisiana to work in the Tangipahoa Parish strawberry fields. The season had not fully begun, so for two or three weeks he did odd jobs for a farmer in Natalbany, about two miles north of Hammond. Rutherford went from Natalbany to Hammond several times. Sometimes he obtained a ride in an automobile and sometimes he walked down

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the railroad tracks, the most direct way to go from Natalbany to Hammond

On the afternoon of April 3, 1954, Rutherford caught a ride to Hammond. He got a haircut, ate supper, killed time with the boys, and had a few drinks of either wine or beer. There is no contention that he was intoxicated. Around eleven o'clock that night Rutherford decided that it was time to go home. It was a dark, foggy night. He chose to go through the railroad yard.

About midnight an Illinois Central conductor found Rutherford. He was mangled. His right arm was severed just above the elbow and his left arm just above the shoulder. His left leg was broken. His collar bones were crushed. Most of his ribs were broken. A large part of the rear of his left hip was sheared off.

On the night of the accident Rutherford was walking between the north main and south main tracks. He either stepped in a hole and fell into the train or he stumbled into the train or perhaps, somehow, he does not know how, the train just hit him, apparently because he was on or too near the tracks. He gave all three explanations in his testimony. The train which hit Rutherford consisted of an engine with a forty-foot tender and a caboose. It was backing north on the south main line at about fourteen miles an hour. The engine was equipped with a strong headlight that provided visibility up to 800 feet in front of the train. There was a small tank light, providing little visibility, on the tender in back of the engine.

The engineer and the fireman were in the cab of the engine. According to their testimony, both were keeping a sharp lookout. There were two switchmen in the caboose. None of the crew saw Rutherford before the accident. The engineer did not know the train had hit Rutherford until someone told him of the accident when he stopped at a coal chute, some forty car-lengths from where Rutherford's body was found.

In reconstructing what probably happened, the trial judge had to rely on the testimony of the conductor who found Rutherford, the Hammond Chief of Detectives, who answered the conductor's call and helped move Rutherford's body, the engineer and crew of the train, and what little information Rutherford could remember. After Rutherford testified, the plaintiff rested his case. The railroad's motion for a directed verdict was granted,¹ the district judge holding: (1) the plaintiff "failed to show where the railroad company was negligent at all"; (2) "as a matter of law that the plaintiff was guilty of contributory negligence"; (3) the doctrine of last clear chance was inapplicable.

We do not see this case as one in which the district judge takes over the function of the jury to resolve factual issues. Here he obeyed the duty, imposed on him as a judge, of directing a verdict based on evidence so overwhelmingly in favor of the railroad that he would have been obliged to grant a new trial if the case had gone to the jury and had the jury awarded the plaintiff a verdict.

I.

Rutherford argues that the railroad should expect people to walk along the tracks in their yard at night and therefore

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owes a high degree of care to keep a sharp lookout for such persons. The accident occurred within the corporate limits of Hammond. There was no fence or other means of keeping people out of the railroad yard. Since the railroad tracks provide the shortest way from Hammond to Natalbany, itinerant workers often used the railroad tracks to come and go from Hammond to Natalbany or to their camps located north of Hammond. The engineer and conductor both knew that the strawberry season was approaching with the usual influx of migratory strawberry workers. The conductor had seen people walking along the tracks at night. The engineer testified, however, that he seldom saw farm workers using the railroad right of way at night. Neither the conductor nor the engineer saw anyone walking on the tracks the night of the accident

Rutherford argues also that the railroad was negligent in backing a train without having a crew member riding on the rear of the train or preceding it on foot in order to warn people walking along the tracks. He contends that the dim light on the tender in back of the engine was insufficient. The other act of negligence attributed to the railroad is the use of a road engine in the yards instead of a switch engine, which has different lights and a cow-catcher in front and back.

The Louisiana law of negligence governs the railroad's liability in this case. The plaintiff must prove some negligence on the part of the railroad; "the mere happening of an accident does not raise the presumption of negligence on the part of a railroad company". Nolan v. Illinois Central R. Co., 1919, 145 La. 483, 82 So. 590, 593.

There are two elements in this case which eliminate from our consideration many of the cases cited by the plaintiff. First, Rutherford was not in a helpless condition. There is no contention that intoxication, mental incompetency, youthfulness, deafness, or other physical infirmities lessened his awareness of the presence of the train or increased the railroad's duties in the circumstances of the case. Second, Rutherford was not injured while attempting to cross at a railroad crossing regularly used by pedestrians. He was walking along the tracks, and the accident happened in the railroad switchyards. The Louisiana Court of Appeals has stated: "There is a vast difference in the measure of duty resting upon a railroad company * * between the handling of cars at a crossing regularly used by pedestrians and on its own switch yards. * * *" Sizemore v. Yazoo & M. V. R. Co., La.App. 1935, 164 So. 648, 650.

A lengthy consideration of the relationship between the railroad and Rutherford is unnecessary. Conceding that Rutherford is a licensee² does not

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materially lighten Rutherford's burden. Rutherford still must prove negligence on the part of the railroad

The train crew did not see Rutherford. It was a dark, foggy night. Visibility was limited. The train was backing at a reasonable rate of speed. The testimony is that the engineer was keeping a sharp lookout from one side of the engine and the fireman from the other. In the circumstances of this case, considering especially that there was no regular crossing, no footpath leading to and across the tracks, no streets crossing the tracks, and the train was in the switchyards, the members of the train crew were exercising reasonable care, and cannot be considered negligent for not having seen Rutherford.

There is no statute, decision, or rule of the railroad company requiring that a man be placed on the steps of the tender or precede the tender when the engine is backing, unless the engine is pushing one or more cars. Rutherford has not drawn our attention to any cases holding that due care requires a man on the back of the tender or on foot preceding the train. Although the Louisiana Supreme Court has implied on certain occasions that a man on the steps of the tender is necessary when the engine is backing,³ it is not negligence, under the law in Louisiana, for the railroad to fail to provide a lookout while switching cars in its own yards, unless it is at or near a crossing customarily used by the public. As the Louisiana Supreme Court said in Settoon v. Texas & P. Ry. Co., 1896, 48 La.Ann. 807, 19 So. 759:⁴

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"It is not to be expected, however, that railroad companies will patrol and police their tracks for the purpose of warning the public of danger. The tracks are silent but potent signals of danger, and to the cautious the cinder walk would have warned of impending danger, particularly on a dark night * * *."

In Nolan v. Illinois Central R. Co., 1919, 145 La. 483, 82 So. 590, a train was backing with only the tender preceding it when it struck Nolan. The engineer was keeping a look-out on one side of the cab and the fireman on the other. Nolan contended that it was negligence to operate a train in a city or town with the tender in front of the engine. The accident occurred within the city limits of New Orleans but away from all habitation, streets, and away from the traveling public. The court said that in these circumstances the railroad was not held to the strict liability to which it should be held on the streets of a thickly populated town or city. Bryant v. Illinois Central R. Co., 1897, La.Sup., 22 So....