Southern Railway Company v. Madden

• Decision Date: 04 August 1956
• Docket Number: No. 7196.,7196.
• Citation: 235 F.2d 198
• Parties: SOUTHERN RAILWAY COMPANY, a corporation, Appellant, v. Frank J. MADDEN, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

235 F.2d 198 (1956)

SOUTHERN RAILWAY COMPANY, a corporation, Appellant, v. Frank J. MADDEN, Appellee.

No. 7196.

United States Court of Appeals Fourth Circuit.

Argued June 12, 1956.

Decided August 4, 1956.

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George H. Ward, Asheville, N. C. (John Gregg McMaster, Columbia, S. C., and Harold K. Bennett, Asheville, N. C., on the brief), for appellant.

John L. Nettles, Darlington, S. C. (James P. Mozingo, III, Darlington, S. C., on the brief), for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and BARKSDALE, District Judge.

PARKER, Chief Judge.

This is an appeal by a railroad company from a judgment for damages in a personal injury action instituted by a plaintiff who claims to have been injured at the 16th Street crossing of defendant's railroad yard in the City of Charlotte, North Carolina, by cars which he claims were negligently backed without signal or warning. The railroad denies the negligence alleged and contends that plaintiff's injuries resulted from his having crawled, while drunk, under cars standing above the crossing which were moved without reason on the part of its employees to apprehend that plaintiff was in a position of peril. Plaintiff sustained serious injuries, his left leg being cut off between knee and ankle and the heel of his right foot being severed.

The case was twice tried. On the first trial the jury found a general verdict in favor of plaintiff in the sum of $5,000. The trial judge allowed this verdict to stand in so far as it established liability on the part of defendant but set it aside in so far as it fixed the amount of damages, awarding a new trial on the issue of damages alone. On the new trial so awarded the jury found damages in the sum of $75,000; and from judgment for that amount the railroad company has appealed. Five questions are presented by the appeal: (1) whether there was an abuse of discretion in not transferring the case to Charlotte, North Carolina, for trial; (2) whether the evidence was sufficient to take the case to the jury on the question of liability; (3) whether there was prejudicial error in admitting in evidence letters of the railroad's claim agent written in connection with attempted compromise of the case; (4) whether there was prejudicial error in the charge of the judge to the jury on the first trial; and (5) whether the judge was acting within the proper limits of a sound discretion in setting aside the verdict as to the amount of damages and awarding a new trial on the issue of damages alone.

On the question of transfer, it appeared not only that the plaintiff's injury occurred in Charlotte, North Carolina, and that the question of liability was governed by North Carolina law, but also that all of the witnesses to the occurrence and to the treatment of plaintiff in a Charlotte hospital following his injury lived in Charlotte, except one who had moved to West Virginia, and that a view of the locus in quo by the jury, which would be of importance in the trial of the case, could reasonably be had only if the case were tried in Charlotte. Furthermore, it appeared that the plaintiff was not a resident of Columbia, S. C., where the case was brought, or even in that judicial district, but of Anderson, S. C., a town in another judicial district and approximately as far from Columbia as from Charlotte, and that no one would be convenienced by a trial in Columbia except plaintiff's attorneys, a photographer who lived in Florence, S. C. and who had been employed to take photographs of the Charlotte railroad yard, and a surgeon and hospital attendants in a Florence hospital where plaintiff had been treated several months after his injury. The question of transfer under 28 U.S.C. § 1404(a) was, of course, a matter resting in the sound discretion of the District Judge; but we cannot imagine a case more clearly calling for the exercise of the power of transfer conferred by the statute; and not to transfer it was, we think, not a sound exercise of discretion.

The motion for direction of verdict was properly denied. While there was strong evidence in support of defendant's contention as to how the injury occurred including a number of admissions by plaintiff himself, the rule is well settled that, on motion for directed verdict, the evidence must be accepted in the light most favorable to plaintiff and, when so accepted, the testimony of plaintiff that he was struck at a street crossing by cars which were being negligently backed across the crossing without signal or warning, cannot be ignored and unquestionably presented questions of fact for the consideration of the jury both on the issues of negligence and contributory negligence.

We think, however, that there was prejudicial error in the admission of the letters of the claim agent relating to a compromise of the case. It is too well settled for argument that evidence of unaccepted offers of compromise or negotiations looking to compromise is inadmissible. Home Ins. Co. v. Baltimore Warehouse Co., 93 U.S. 527, 548, 23 L.Ed. 868; Arnold v. Owens, 4 Cir., 78 F.2d 495, 497; Penn Dixie Lines v. Grannick, 238 N.C. 552, 78 S.E.2d 410, 413 and cases there cited. Plaintiff admits the correctness of the rule as stated but contends that the letters were admissible to corroborate the evidence of plaintiff and to contradict the evidence of defendant's claim agent as to the circumstance under which a written statement was given by plaintiff, and that the court instructed the jury that the letters were not to be considered as offers of compromise. He further contends that, at all events, their admission was not prejudicial. We are not impressed by any of these contentions.

Plaintiff was injured on the 9th day of October 1950. On December 30, 1950 he was discharged from the hospital in Charlotte. Just prior to his discharge he gave to defendant's claim agent a written statement to the effect that his injury occurred as a result of his squatting beneath one of a string of cars several hundred feet north of the 16th Street crossing to get out of the rain, and that he was knocked down and run over when the cars were moved. He testified that he signed this statement on the promise of the claim agent that he, the claim agent, would pay plaintiff's hospital bill so that he could be discharged from the hospital. The claim agent denied this; and the letters were admitted for the purpose of corroborating plaintiff and contradicting the agent as to this matter. They had no tendency, however, either to corroborate plaintiff or contradict the claim agent. They were written March 26 and March 28, 1951, and clearly related to nothing except an attempt to compromise the case. In the letter of March 26 the claim agent said:

"I talked with my big boss about you last week. I am having a tough time trying to get what I want for you, but I am still trying. I am writing back to the Washington office about you, today. I will let you hear from me again in a week or so."

In the letter of March 28, he said:

"Today I made a little headway, and got a little more money. I would like to talk with you again, when you feel like coming to Charlotte."

And we cannot agree that the error in the admission of the letters was harmless. They would almost certainly be construed by the jury as an admission by the claim agent that the defendant was liable to plaintiff in some amount; and, in all probability, they constituted the basis upon which the jury arrived at a verdict of $5,000 for an injury which obviously called for a verdict in a much larger amount if there was liability. The jury may well have been unwilling to award plaintiff nothing when it appeared that the claim agent of the defendant was endeavoring to induce defendant to settle with him for his injury.

Coming to the charge of the court, we think there was error in submitting the doctrine of last clear chance to the jury in the manner in which it was submitted, and in modifying and refusing instructions asked by the defendant which would have kept the jury from misapplying that doctrine. The last clear chance doctrine was applicable neither on the plaintiff's contention as to the facts nor upon the contention of defendant. For the doctrine to be applicable it must have appeared that the operatives of the defendant's train either actually saw, or in the exercise of ordinary care in keeping a proper lookout could have seen, plaintiff in a position of danger in time to have enabled them by the exercise of ordinary care to avoid injuring him. Osborne v. Norfolk & W. Ry. Co., 233 N.C. 215, 63 S.E.2d 147; Battle v. Southern R. Co., 223 N.C. 395, 26 S.E. 2d 859. Here, according to plaintiff's contention, he was walking along a fully lighted street crossing, sober and in full...