Southern Railway Company v. Neese

Decision Date10 November 1954
Docket NumberNo. 6869.,6869.
Citation216 F.2d 772
PartiesSOUTHERN RAILWAY COMPANY, Appellant, v. W. W. NEESE, Administrator of the Estate of William Neese, deceased, Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

John Gregg McMaster, Columbia, S. C. (Frank G. Tompkins, Jr., Columbia, S. C., on brief), for appellant.

Henry Hammer, Columbia, S. C., and James P. Mozingo, III, Darlington, S. C., (Archie L. Chandler, Greenville, S. C., and Benny R. Greer, Darlington, S. C., on brief), for appellee.

Before PARKER, Chief Judge, and SOPER and DOBIE, Circuit Judges.

DOBIE, Circuit Judge.

This is a civil action brought in the United States District Court for the Eastern District of South Carolina by the Administrator of the Estate of William Neese to recover damages under the Federal Employers' Liability Act, 45 U.S.C.A. § 51, for the death of William Neese, allegedly caused by the negligence of the Southern Railway Company (hereinafter called Southern), a railroad engaged in interstate commerce. At the conclusion of all the evidence, Southern moved for a directed verdict, asserting that there was not sufficient evidence of its negligence to go to the jury. This motion was denied and the jury returned a verdict for $60,000.00 in favor of the Administrator. Southern then moved for a judgment non obstante veredicto or, in the alternative, for a new trial, on the score that the verdict was excessive and based upon passion. This motion was denied. The Court, however, felt that the verdict was excessive and ordered that it be set aside and a new trial granted unless $10,000.00 of the verdict was remitted by the appellee. Remittitur was duly made and judgment was entered for $50,000.00.

Southern has appealed to us. Two questions are presented: (1) was there sufficient evidence of Southern's negligence to warrant submission of the case to the jury? and (2) did the District Court abuse its discretion by refusing to grant Southern's alternative motion for a new trial on the question of damages? The answer to both questions, we think, must be in the affirmative. The District Court, therefore, must be reversed in part and the case remanded for a new trial on the question of damages.

William Neese, about twenty-two years old, was a car inspector in Southern's freight yards at Columbia, South Carolina. A little after 9:30 o'clock on the night of July 5, 1950, his mutilated body was found lying beside track number six in the West Yard. He had been cut in two. His lower torso was found at a spot about 140 feet from where his head and shoulders were lying.

At about 9:15 o'clock that evening, Southern's train Number 52, consisting of an engine and seventy-six freight cars, pulled into the West Yard on track Number 5. The engine was disconnected from the train of cars, and after the brakeman threw a switch, the engine backed down track Number 6 to pick up a conductor and a switchman. The brakeman testified that he saw and spoke with a young man at this time. The engineer also testified that he saw a young man in a rain coat walking along between tracks Numbers 5 and 6 just before he backed onto track Number 6. After Neese's body was found, traces of blood and flesh were found on the rear of this engine and its tender.

No whistle or bell was sounded by the engine prior to its backing up, and evidence was introduced to show that no bell or whistle is required to be used on the part of engines in the yard. No lookout was posted on the rear of the tender as the engine backed up. All the parties present on the engine as it backed testified that a small light was burning on the rear of the tender. Appellee introduced one witness, however, who testified that he had watched Number 52 pull into the yard and watched it back into track Number 6 and that he saw no light showing at the rear of the tender and that he would have seen one if it had been burning.

Although Southern was attempting to make repairs, the tower lights were out in the West Yard at the time of the accident, due to a broken insulator. The night was dark and rainy but there is no testimony to indicate that the tower light had been put out by the storm.

The Federal Employers' Liability Act, 45 U.S.C.A. § 51, imposes upon a railroad engaged in interstate commerce the duty of furnishing its employees with a safe place in which to work. Ellis v. Union Pacific R. Co., 329 U.S. 649, 67 S.Ct. 598, 91 L.Ed. 572; Bailey v. Central Vermont Ry. Co., 319 U.S. 350, 63 S.Ct. 1062, 87 L.Ed. 1444. Whether the railroad has been negligent in discharging this duty is a question to be determined by the jury, Bailey v. Central Vermont Railroad Co., supra, unless "* * * the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, * * *" in which case the court should direct a verdict for the railroad if the conclusion is that no negligence exists. Brady v. Southern R. Co., 320 U.S. 476, 479, 64 S.Ct. 232, 234, 88 L.Ed. 239.

In view of the evidence presented at the trial, we cannot say that the only reasonable conclusion is that Southern was not guilty of negligence in providing a safe place for its employees to work. The questions of whether a light was shown, whether Southern was negligent in repairing the tower light and whether a lookout was necessary in the dark yard, were certainly for the jury. The District Court was quite correct in refusing to direct a verdict.

There is no merit in Southern's contention that a verdict should have been directed since Neese assumed the risks incident to his job. Referring to a suit under the Federal Employers' Liability Act, Justice Black speaking for the Supreme Court of the United States in Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 55, 67-68, 63 S.Ct. 444, 451, 87 L.Ed. 610, said:

"No case is to be withheld from a jury on any theory of assumption of risk and questions of negligence should under proper charge from the court be submitted to the jury for their determination. * * * `Where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences\', the case should go to the jury."

This principle, enunciated in a case factually similar to the instant one is not altered or qualified by the Court's decision in Brady v. Southern R. Co., 320 U.S. 476, 64 S.Ct. 232, 88 L.Ed. 239.

The second question presented by Southern is whether the District Court abused its discretion in refusing Southern's alternative motion for a new trial on the ground that the amount of the verdict was not supported by anything in the record.

The Federal Employers' Liability Act, 45 U.S.C.A. § 51, provides in part that every railroad engaged in interstate commerce that negligently injures an employee: "* * * shall be liable in damages * * *, in case of the death of such employee, to his or her personal representative, for the benefit * * * of such employee's parents". Where death has occurred, the damages recoverable by the personal representative are not unlimited but are restricted to compensation for loss of the reasonably expected pecuniary benefits which would have resulted to the beneficiaries from the continued life of the deceased. Chesapeake & Ohio R. Co. v. Kelly, 241 U.S. 485, 36 S.Ct. 630, 60 L.Ed. 1117; Chicago, B. & Q. R. Co. v. Kelley, 8 Cir., 74 F.2d 80. The verdict of the jury is to be...

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