SOUTHERN RAILWAY COMPANY v. Haynes

• Decision Date: 08 September 1961
• Docket Number: No. 18739.,18739.
• Citation: 293 F.2d 291
• Parties: SOUTHERN RAILWAY COMPANY, Appellant, v. Richard HAYNES and Grady Howard, Jr., by next friend, Grady Howard, Sr., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

293 F.2d 291 (1961)

SOUTHERN RAILWAY COMPANY, Appellant, v. Richard HAYNES and Grady Howard, Jr., by next friend, Grady Howard, Sr., Appellees.

No. 18739.

United States Court of Appeals Fifth Circuit.

August 2, 1961.

Rehearing Denied September 8, 1961.

Emory F. Robinson, Robert B. Thompson, Gainesville, Ga., Charles J. Bloch, Macon, Ga., Wheeler, Robinson & Thompson, Gainesville, Ga., for appellant.

Sidney O. Smith, Jr., Telford, Wayne & Smith, Gainesville, Ga., for appellees.

Before JONES and BROWN, Circuit Judges, and DE VANE, District Judge.

DE VANE, District Judge.

Richard Haynes, appellee, sued Southern Railway Company, appellant, in the City Court, Hall County, Georgia, for $100,000 damages for pain and suffering, medical expenses, loss of earnings and diminished capacity to labor and earn money, which he alleged resulted from injuries sustained on April 25, 1959, when a tractor-trailer he was operating was struck by a train of appellant just outside the city of Gainesville, Georgia. The case was removed to the District Court of the United States for the Northern District of Georgia, Gainesville Division. Appellant then filed its answer in the United States District Court.

Grady Howard, Jr., by his next friend, appellee, also sued appellant in the same State Court for $25,000 damages on account of pain and suffering, medical expenses and diminished capacity to labor and earn money, which he says resulted from the collision between the train and tractor-trailer operated by Haynes in which he was riding. The case was removed to the same United States District Court and appellant then filed an answer.

Both cases were consolidated for purposes of trial, separate verdicts to be rendered. The cases were tried together before a jury at the October, 1960, term of Court. Verdicts were rendered in favor of Haynes in the sum of $23,640.85 and costs and in favor of Howard in the sum of $1,360 and costs.

Appellant entered separate direct appeals to this Court and the cases have been here consolidated on appeal.

Appellees alleged in their complaints that the collision occurred at a grade crossing in a thickly populated and industrial area where there was heavy vehicular traffic; that there were two lines of railroad tracks over the crossing situated parallel and about six feet apart and that the line of track nearest to the approach of the tractor-trailer was a main line and the other a passing or side track, which appellees contended was used to stop trains upon while other trains passed.

Appellees further alleged that the tractor-trailer, with Haynes driving and Howard sitting on the seat beside him, approached the crossing from the east, stopped and remained stopped until a passenger train going north had crossed and fully cleared the crossing and that after Haynes had looked in both directions, he moved the vehicle forward in low gear over the track they alleged to be the main line and on to the other track, where it was struck by a freight train traveling south at an alleged speed in excess of fifty miles an hour; that the tractor-trailer was carried approximately three hundred feet down the track and demolished and that both appellees were injured. The complaints further alleged that neither the bell nor the whistle on the freight train was sounded.

As is the custom in Georgia, nine specific charges of negligence were named in the complaints. It is unnecessary to repeat them here as they are the usual charges in cases of this character.

Appellant alleged in its answers that there were two main lines of railroad tracks of equal prominence over the crossing and that both main lines extended a distance of seven miles from Red Lane, north of Gainesville, to Chicopee, south of Gainesville. Appellant further alleged that after the passenger train had passed over the intersection, Haynes without looking drove the vehicle forward across the first track, the intervening distance between the two tracks and upon the second track in front of the freight train, and that the injuries suffered by him were caused by his own negligence in failing to use his sight and hearing in failing to observe the approaching train and in failing to heed a flashing red light signal with an electrically operated bell at the crossing facing him and in failing to remain stopped until both trains had cleared the crossing; that Haynes by the exercise of ordinary care could have avoided the injuries he sustained and was not entitled to recover.

Appellant also contended that plaintiff Howard could also have avoided the injuries he claims to have suffered by the exercise of ordinary care and that his injuries were directly and proximately caused by his own negligence in failing to warn the driver of the vehicle in which he was riding of the approaching second train.

The evidence in support of the charges of negligence made by appellees and the charges of negligence made by appellant is in some respects conflicting. Testimony was introduced by appellees to the effect that after the passenger train had passed, the flashing red light signal with electrically operated bell ceased to operate when appellees moved ahead to cross the railroad tracks. Appellant offered testimony to the contrary....