Southern Railway Company v. Campbell

• Decision Date: 11 January 1963
• Docket Number: No. 19438.,19438.
• Citation: 309 F.2d 569
• Parties: SOUTHERN RAILWAY COMPANY, Appellant, v. Mrs. Mary I. CAMPBELL, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

309 F.2d 569 (1962)

SOUTHERN RAILWAY COMPANY, Appellant, v. Mrs. Mary I. CAMPBELL, Appellee.

No. 19438.

United States Court of Appeals Fifth Circuit.

November 7, 1962.

Rehearing Denied January 11, 1963.

Edgar A. Neely, Jr., Greene, Neely, Buckley & DeRieux, Atlanta, Ga., for appellant.

Hamilton Lokey, Atlanta, Ga., Robert B. McCord, Jr., Hapeville, Ga., for appellee, Mrs. Mary I. Campbell.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and JOHNSON, District Judge.

JOHNSON, District Judge.

This diversity action originated in the United States District Court for the Northern District of Georgia by complaint filed by the mother of the deceased John Robert Campbell, Jr., seeking to recover damages for the death of her minor son, who was killed on October 30, 1958, when hit by one of the appellant's trains on a trestle spanning Peachtree Creek, inside the city limits of Atlanta, Georgia. The case was tried without a jury, and detailed findings of fact and conclusions of law were made and entered by the District Judge, Campbell v. Southern Railway Company, D.C., 198 F.Supp. 661, and an appropriate judgment was entered thereon against the railroad in the amount of $22,500. It is from this judgment that the railroad appeals to this Court.

Appellant contends that both the findings of fact and the conclusions of law as made by the District Court are erroneous and, further, that the District Court committed prejudicial error in requiring the production of certain documents.

On the date of his death, John R. Campbell, Jr., was approximately 13½ years of age. On August 30, 1958, the youth and his father, John R. Campbell, in the course of returning from a Saturday afternoon hike, started walking, heading north, across a railway trestle that was owned and maintained by the Southern Railway Company. A few minutes before getting on the trestle, the father and son saw a train cross the trestle going south on the southbound (west) track. The trestle was approximately 312 feet long, supported two tracks running generally north and south; the highest point of the trestle was approximately 50 feet above Peachtree Creek. There were no walkways and no barriers and no signs at either end of the trestle. Approximately 600 feet north of the trestle, the tracks turn sharply to the left behind a large embankment. The embankment was sufficiently large to obscure the trestle from the train crew approaching from the north until approximately 700 feet from the north end of the trestle. When the father and son had reached a point about 78 feet from the north end of the trestle, they heard the whistle of a train approaching from the north — the same direction as the previous train. Mr. Campbell and his son moved over to the east track but when the train emerged from behind the embankment, they saw it was on the track they had moved on. The train's emergency brakes were immediately applied but with very little initial effect, and before Mr. Campbell and his son could get on the other track, the train brushed the father and killed his son. The Southern Railway train was being operated by Couch, an engineer, Fitzpatrick, a fireman — but qualified and then acting as engineer.

At the time of the incident in question, the District Court found the train was being operated with company authority at a speed "in excess of 55 miles per hour" and in violation of an existing and valid City of Atlanta ordinance restricting the speed of trains within the city limits to 25 miles per hour.¹ We agree with the lower court that the evidence fully warranted this finding and also a further finding and conclusion to the effect that this speed constituted negligence. Wright v. Southern Railway Company, 139 Ga. 448, 449, 77 S.E. 384; Central of Georgia Railway Company v. Bond, 111 Ga. 13, 36 S.E. 299.

The trestle was located in a business and industrial district of Atlanta, with at least one small community nearby, and the evidence fully justified the lower court in finding that the trestle was used by members of the public as a means of crossing Peachtree Creek at that point, and, further, there was a welldefined pathway leading to the tracks near the trestle. The evidence was ample to show that the railway's employees had observed the public using the trestle as a walkway and Engineer Couch very candidly testified that on at least two occasions he had seen young boys out on the trestle. It is highly significant to note that the operating members of this train crew were aware that the train could not possibly be stopped within the distance the trestle could be seen by the train crew when operating in a southerly direction, i. e., from behind the embankment and toward the trestle. As a matter of fact, we think it fair to say that the train crew was even aware that the train — 896 feet in length and going at a speed in excess of 55 miles per hour — could hardly be slowed to any significant extent in the distance from the embankment — where the trestle could first be seen — and the north end of the trestle. As to the application of the doctrine of "duty to anticipate," the facts in this case are even stronger than those in the case of Shaw v. Georgia...