Shadoan v. Cincinnati, N.O. & T.P. Ry. Co.

• Decision Date: 02 February 1915
• Docket Number: 2518.
• Parties: SHADOAN v. CINCINNATI, N.O. & T.P. RY. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

220 F. 68

SHADOAN v. CINCINNATI, N.O. & T.P. RY. CO.

No. 2518.

United States Court of Appeals, Sixth Circuit.

February 2, 1915

T. L Edelen, of Frankfort, Ky., and James Denton, of Somerset, Ky (Robt. Harding, of Danville, Ky., of counsel), for plaintiff in error.

George Hoadly, of Cincinnati, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

The administrator brought an action in the Pulaski circuit court charging the railroad company and one of its brakemen Starling Litton, with negligently and wrongfully causing the death of McKinley Shadoan, a boy 15 years of age. The case was removed to the court below on the ground of diversity of citizenship. In the course of the trial, on motion of plaintiff, Litton was dismissed without prejudice; and at the close of plaintiff's evidence, on motion of the company, a directed verdict was rendered in its favor. The only assignment argued or relied on here charges error in directing the verdict.

The intestate and two other boys boarded a south-bound freight train of the defendant at Burnside, Pulaski county, to ride to and beyond Greenwood, a station about 11 miles south of Burnside, with the intention of returning home on some north-bound train. The boys resided in Burnside, and, having a school holiday, undertook, according to the evidence, 'to steal a ride without the knowledge of the train employes. ' The train in question was the first of two sections, and both entered a side track at Greenwood to permit a north-bound passenger train to pass. There the boys left the train, but after the north-bound train had passed, and the freight train had started to return to the main track, they got on the bumpers of two adjoining box cars forward of the caboose (but how far forward is not shown) and were discovered by the conductor of the freight train. The conductor threw stones at them, and also beneath the cars, to drive them off. They again left the train and started away from the track. The track there runs north and south in a cut, and the railroad right of way is bounded on the east by a county road; the right of way and the road being separated by a wire fence. When the boys started away from the track, the conductor climbed to the top of a box car, and with his right hand made a motion indicating an intent again to throw at the boys, and with his left hand motioned toward the rear end of the train, and the boys took this to be a signal to trainmen riding on the caboose. These motions were made while the boys were close to the wire fence (but on which side is in doubt), and seem to have frightened them.

Shortly after this, Starling Litton, the brakeman, fired a pistol three times from the east side door of the caboose and mortally wounded the intestate. Just where the boys then were is not definitely shown; estimates as to where they were seen immediately after the shooting occurred range from 50 to 75 yards east of the track. When Starling Litton was a defendant, he was called by the plaintiff to testify by deposition. He did not testify whether he saw the conductor give the signal mentioned or not, but did testify that while on the caboose he saw the boys throwing rocks at the conductor, from a place near the wire fence and some distance south of the caboose, though he could not say on which side of the fence they were, and that while the train was moving slowly on the side track he went below and to a locker of the caboose for his pistol, and in the presence of another brakeman fired from the east door with the result already stated. A rule of the company then in force and applicable to freight brakemen provided:

'They will allow no unauthorized person to enter the cars, ride on the train, or handle freight.'

Litton had knowledge of this rule, and was satisfied that the boys had been riding on the train; and, further, his purpose in shooting was to scare them away from the train and prevent them from riding on it. He testified at considerable length. In reference to the rule, for example, this appears:

'Q. Is that the rule you referred to when you say it was your duty to keep an unauthorized person, or persons who didn't have transportation, from riding on the train? A. Yes, sir. Q. And that kind of a rule was in force at the time you did that? A. Yes, sir. Q. Had your train gotten out of the switch when you fired? A. No, sir.'

And referring to the shooting:

'Q. Did you believe at that time that would frighten the boys and prevent them from getting on the train? A. I thought it would make a noise and scare them away. Q. And your sole purpose was not to injure them, but to prevent them from coming back on the train? A. Keep them away. Q. And you knew at that time the company required you to keep them from coming back on the train? A. yes, sir. * * * Q. And you knew they were out there in the direction in which you fired? A. They were south of where I was; the caboose was moving; we were pulling out. Q. And they were still south of you when you fired the shots? A. Yes, sir. * * * Q. From the time you left the top of the caboose and got down and got your pistol, how many feet had it gone? A. Fifty or sixty feet.'

Further, on re-examination:

'Q. You though you were performing your duty in firing your pistol? A. Yes, sir; to scare them away. Q. You thought your duty required you to scare them away from the train and keep them from getting on the train at the time you fired the shots, didn't you? A. Yes, sir. Q. And it was for that reason alone you fired the shots? A. Just to scare them away. Q. And to prevent them from getting back on the train? A. Yes, sir.'

Does such testimony as this, in connection with the recited facts preceding it, present a question of law for the court, or a question of fact for the jury? It is hardly necessary to restate the rule, prevailing in this court, that upon a motion to direct a verdict it is the duty of the trial judge to take that view of the evidence most favorable to the party against whom the direction is requested. Williams v. Choctaw O. & G.R. Co., 149 F. 104, 105, 79 C.C.A. 146; Crucible Steel Forge Co. v. Catharine Moir, Adm'x, 219 F. 151, decided January 5, 1915; Worthington v. Elmer, 207 F. 306, 308, 125 C.C.A. 50. Stated otherwise, 'it must be assumed that plaintiff's testimony is true, and he must have the benefit of every fair inference therefrom. ' Louisville & N.R. Co. v. Bell, 206 F. 395, 398, 124 C.C.A. 277, 280 (C.C.A. 6th Cir). And the rule of fair and reasonable inference deducible from the entire evidence so challenged is not varied, even where there are contradictions in the testimony of one or more of the witnesses, for the credibility of witnesses is purely a question for the jury under proper instructions of the court. Rochford v. Pennsylvania Co., 174 F. 81, 83, 98 C.C.A. 105 (C.C.A. 6th Cir.). The issue made in the arguments of counsel presents a striking illustration of the necessity to test the soundness of a directed verdict by such inferences as may be justifiably drawn in accordance with the rules thus pointed out.

Counsel in effect, if not in terms, agree to the proposition that the defendant's liability for the act of Litton is to be...