Southern Ry. Co. v. United States

• Citation: 197 F.2d 922
• Decision Date: 27 June 1952
• Docket Number: No. 13788.,13788.
• Parties: SOUTHERN RY. CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

197 F.2d 922 (1952)

SOUTHERN RY. CO. v. UNITED STATES.

No. 13788.

United States Court of Appeals Fifth Circuit.

June 27, 1952.

Rembert Marshall, W. Neal Baird, Atlanta, Ga., for appellant.

H. A. Stephens, Jr., Asst. U. S. Atty., F. Douglas King, Asst. U. S. Atty., J. Ellis Mundy, U. S. Atty., Atlanta, Ga., for appellee.

Before HOLMES, BORAH, and RIVES, Circuit Judges.

BORAH, Circuit Judge.

The Southern Railway Company brought this action under the Federal Tort Claims Act¹ against the United States of America to recover damages for injuries caused to its rolling stock and equipment as the result of a collision at a railroad crossing in Chamblee, Georgia between one of its fast passenger trains and two large, crane trucks belonging to the United States Navy. The government answered, denying liability, and filed a counterclaim against the railroad, alleging that the collision was due solely to the negligence of the railroad, and seeking recovery for damage to the cranes. The case came on for trial before the District Judge, who found that both the railroad and the government were negligent; that such negligence concurred in proximately causing the collision; and that neither of the parties could have avoided the consequences of the negligence of the other. In applying the Georgia comparative negligence doctrine, the court found that the injured parties were equally negligent, and entered judgment that the railroad take nothing by its complaint and the government should recover nothing on its counterclaim. The railroad alone has appealed.

The material facts are these: At around 7:25 P.M. on January 13, 1948, the passenger train New Yorker, consisting of two diesel locomotives and eleven coaches, was proceeding north from Atlanta, Georgia at a rapid rate of speed. At the same time a large Sterling crane, weighing twenty tons and belonging to the United States Navy, was proceeding north along Peachtree Road Extension, towing a disabled 12 ton Reo crane enroute to the naval air station which is located near the incorporated town of Chamblee, Georgia. At the edge of Chamblee, which is a part of greater Atlanta, Peachtree Road Extension runs immediately adjacent and parallel to appellant's railroad tracks on the west and is intersected on the right hand side by a highway about thirty feet wide which runs in an easterly direction across the tracks toward the naval air station. This highway intersects Peachtree Road Extension at an angle greater than 90 degrees. The sharpness of this turn, together with the extreme weight, length, and lack of maneuverability of the two cranes, combined on that night to make their crossing of the tracks a most difficult operation.

As the Sterling crane and its tow reached the intersection, Petty Officer Gallenger, who was driving the lead crane, cut his steering wheel sharply to the right and proceeded slowly across the southbound² and northbound tracks until his left front wheel ran off the road on the northern side of the grade crossing. Thereupon, he reversed the crane's motor, backed up to a point where the front of his vehicle almost cleared the northbound track, and again put the crane truck in forward gear. This time the crane proceeded until its left front wheel rested on the far spur track on the edge of a shallow ditch — its further progress being obstructed by a signal light pole 4½ feet from the highway as well as by a hand car lying on the shoulder of the road. Whereupon, Gallenger stopped the crane and by means of the foot brake held it from rolling forward into the ditch. At about this time a naval officer heard the New Yorker sound its horn some distance south of the crossing. He immediately warned the crane detail of the impending danger and directed certain members thereof to run along the track toward the train and signal it to stop. The first to depart on this mission, Aviation Machinist's Mate Sides, had scarcely left the crossing when the automatic crossing bells commenced to ring and the red signal lights to flash; these warning devices having been set off automatically by the New Yorker's locomotive when it reached a point 2100 feet south of the crossing. Gallenger saw the signal light flashing and hurriedly double clutched the crane truck, in an attempt to put it in reverse gear so as to back off of the track, but his foot slipped off of the brake causing the Sterling crane to lunge forward, and throwing him against the steering wheel. About this time he quickly looked out of the cab window of his vehicle straight into the headlight of the onrushing train, and jumped to a point of safety just an instant before the collision.

In the meantime, the New Yorker continued to approach the crossing at a speed of approximately sixty miles per hour, its engineer and fireman being unaware of the...