Southern Ry. Co. v. King

• Decision Date: 03 March 1908
• Docket Number: 1,634,1,635.
• Citation: 160 F. 332
• Parties: SOUTHERN RY. CO. v. KING (two cases).
• Court: U.S. Court of Appeals — Fifth Circuit

160 F. 332

SOUTHERN RY. CO. v. KING (two cases).

Nos. 1,634, 1,635.

United States Court of Appeals, Fifth Circuit.

March 3, 1908

Jno. J Strickland, for plaintiff in error.

Reuben R. Arnold and Harvey Hill, for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and BURNS, District Judge.

BURNS District Judge.

These suits were brought in the superior court of Habersham county state of Georgia, against the Southern Railway Company, and were removed by the latter to the United States Circuit Court. Mrs. King sought recovery for the death of her husband, and Inez, a minor, sued by next friend for personal injuries which she had sustained. The grounds of negligence set out in both petitions are practically the same. Mrs. King alleging that, on the day of the accident, 'your petitioner, her daughter, Inez, about 14 years old, and her husband, A. O. King, were in a buggy drawn by a mule traveling on a public road, and while crossing the track of said railway at what is known as the 'Wade Crossing' the vehicle was struck by the locomotive; that in the approach to said crossing the track was obscured by trees, brush, and a high bank; that the approaching train was not discovered until they were upon the track; that the speed of the train was fifty miles an hour; that the death of A. O. King and the injuries received by petitioners were due to the negligent manner in which the train was operated, the high rate of speed, and failure to give any warning. ' The petitions further aver that 'the defendant's agents failed to blow the whistle at the blow post; and failed to simultaneously check and keep checking the speed of said train as it approached said crossing, so as to stop in time, should any person or thing be crossing said track.'

The defendant, the railway company, filed its answer denying each and every paragraph of plaintiff's petition, and thereafter, with leave of court, pleaded by amendment that at the time of the accident for many years prior thereto, and now, the defendant operates and controls a line of railway from the city of Washington, D.C., through the states of Virginia, North and South Carolina, into and through Georgia; that said railway forms a continuous line under the act of Congress, for the purpose of facilitating commerce among the several states, and the postal and military communications of the United States, and to that end for the purpose of carrying passengers, freight, mails, troops, and supplies from one state into another; that said train was a through train made up in the city of Washington, carrying mail, express, and passengers from one state into another, and doing an interstate business, under the authority and control of the Congress of the United States; that the statute of Georgia providing that 'there must be fixed on the line of said road, at the distance of 400 yards from the center of each of said crossings and on each side thereof, a post, and the engineer shall be required, whenever he shall arrive at either of said posts to blow the whistle of the locomotive until it arrives at the public crossing, and to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road,' is inoperative as to defendant's trains, for that it is in violation of section 8, art. 1, of the Constitution of the United States, which gives to Congress the right to 'regulate commerce with foreign nations and among the several states'; that said statute is not a reasonable regulation of the police power, but a direct burden upon and impediment to interstate traffic, and impairs the usefulness of defendant for the conduct of such business; that it is impossible to observe said statute and carry the mails under the contract which defendant has with the government, and the observance of said statute renders it impossible to do an interstate business.

Mrs. King, about the same time, filed suit in Habersham county seeking compensation for the injuries to her person, and, the amount claimed as damages not being within the jurisdiction of the said federal court, trial was had in the superior court of said county, resulting in a verdict for $1,000. On appeal, the judgment was affirmed by the Supreme Court of the state of Georgia. See King v. Ry. Co., 126 Ga. 794, 55 S.E. page 965, 8 L.R.A. (N.S.) 544. Upon motion and agreement of counsel, an order was entered consolidating the two causes of the mother and daughter, resulting in verdicts for the plaintiffs below, from which, and the judgments thereon, assignments of error are presented for review.

The records are identical in both cases with the exception that the railway company filed in the trial court a plea in bar against the petition of Mrs. King upon the ground that plaintiff having recovered in the state court for damages to her person is now estopped from maintaining the present action for the death of her husband. The contention is made that the injuries to the person of the wife, and the loss occasioned by the death of the husband, constitute a single cause of action, and that separate actions will not lie. This contention appears to be seriously made, but in the practice and procedure of the several states it would appear to be a legal novelty without law or precedent. If it be conceded that the deceased husband was the 'personal property' of the plaintiff herein, then the contention would be supported by the decisions of every state court but one. Where injuries to the person and the physical property of the injured party grow out of a single tort, then, and in that event, the tort to the person and the property constitutes a single cause of action, and, as previously suggested, the same should be presented in a single suit. This is the English view, and the holding is the same in all of the American courts with one exception. The declaration that the husband is the 'personal property' of the wife has not, as yet, received the sanction of court or text-writer. The rule as to a single cause of action has no application where the injury is suffered in a different capacity, or by different persons. In such cases there is, of necessity, two causes of action, and, when embraced in a single suit, a plea of misjoinder would be applicable. Damages recovered by the surviving wife for injuries to her person become her separate property, whereas in many states, and especially in Georgia, the recovery for the death of the husband becomes a trust fund for the benefit of the heirs of the deceased. It follows that the error complained of, by reason of the court overruling said plea, is without merit. Any other disposition would have been error.

The following instruction is assigned as error:

'I further charge you that the care to be exercised by the said A. O. King in approaching the crossing and railroad track is that care which an ordinarily prudent person would exercise for his own safety. What would, or would not, amount to negligence in the manner in which a person entered upon a railroad track would depend, to a large extent, upon the peculiar location of the place at which he went upon the track.

An ordinarily prudent person in the possession of all his faculties would not attempt to cross a railroad track at any place without using at least his sense of sight, if not that of hearing, to determine whether, at the time and place he was about to cross the same, there were present any of those dangers which a person of ordinary intelligence would reasonably apprehend.'

This charge was given at the request of the defendant, with this exception, that the judge substituted the word 'should' for 'would' where it occurs in the last paragraph of the charge, and plaintiff in error contends that it changed the whole force of the charge. This assignment cannot be sustained. Instructing the jury that the care required is such that an ordinarily prudent person 'would exercise' is equivalent to saying 'should exercise'; the words 'would' and 'should' import the same meaning, and the best authorities use them interchangeably. Blythe v. Birmingham Water Works, 11 Exch. 781; Words & Phrases, vol. 8, p. 1527.

The action of the trial court in sustaining a demurrer to so much of defendant's answer, setting up, by amendment, the statute of Georgia governing trains in approaching a public road crossing, known as 'the blow post and checking act,' is assigned as error, and particularly the ruling as to the second clause thereof, which requires the engineer 'to simultaneously check and keep checking the speed thereof, so as to stop in time should any person or thing be crossing said track on said road. ' This legislative act appears in the statement, and is known as section 2222 of the Civil Code of 1895, and was formerly section 70,, Civ. Code 1882. The brief and argument of the plaintiff in error largely rests the disposition to be made here upon this assignment. An examination of the act complained against, and its construction by the courts of Georgia, will relieve it from the suggestion that it was enacted for the purpose of regulating interstate commerce. This statute was passed January 22, 1852 (Acts 1852-52, p. 108), and became effective on the 1st of February thereafter. The original act provided that blow posts should be erected at a distance of 200 yards from each public road crossing, and a sign at the crossing in large letters with the warning: 'When You Hear the Whistle Blow, Look Out for the Engine. ' As amended, the distance of the blow post is 400 yards, and the warning sign has been eliminated. This enactment resulted from an accident to Mrs. Winn, her children and driver, which occurred at a public road crossing on the line of the Macon & Western Railway on December...