Southern Ry. Co. v. Cook

• Decision Date: 15 September 1915
• Docket Number: 1349.
• Parties: SOUTHERN RY. CO. v. COOK.
• Court: U.S. Court of Appeals — Fourth Circuit

226 F. 1

SOUTHERN RY. CO. v. COOK.

No. 1349.

United States Court of Appeals, Fourth Circuit.

September 15, 1915

William Leigh, of Danville, Va., and R. B. Tunstall, of Norfolk, Va for plaintiff in error.

B. H Custer and Harry Wooding, Jr., both of Danville, Va., for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

The plaintiff, as administrator of the estate of W. M. Poteat recovered judgment against the Southern Railway Company for the negligent killing of Poteat while employed as a section foreman.

The first question to be decided is whether the District Judge was right in overruling the demurrer to the first and second counts of the declaration. The allegation is made in each of the counts that Poteat as section foreman was on the track in the discharge of his duties, that the defendant either knew or should have known that he was there, and that one of the defendant's trains engaged in interstate commerce struck and killed him. The first count charges negligence to the defendant (1) in failing to keep a proper lookout; (2) in failing to give proper warning of the approach of the train and (3) in running its train at a dangerous and reckless rate of speed. There is no allegation that the train was not running on its schedule time. The demurrer was as follows:

'(1) Each count in the declaration contains several allegations of duty, a part of which impose no obligation on the defendant, and attributes the injury complained of to the cumulative effect of all as the approximate cause of the injury. In each count the speed of the train is set out as one of the grounds of negligence, and the failure to sound its whistle and ring its bell is set up as negligence. These acts and omissions were not negligence.

'(2) The second count alleges the failure to have or to obey any proper rules or regulations, etc.; but it does not allege what rules or regulations there should have been, or that the failure to have them approximately caused the injuries complained of.'

To support the demurrer, the defendant relies on a rule of pleading thus laid down by the Supreme Court of Appeals of Virginia in N. & W. Ry. Co. v. Stegall, 105 Va. 538, 54 S.E. 19.

'It is clear, therefore, from the authorities, that the defendant was not guilty of actionable negligence in pushing the train in question over its trestle, and was under no obligation to keep a lookout on the end of its cars, or, in anticipation of decedent's presence on the trestle, to provide for his safety. It was the duty of the defendant, it is true, to observe the speed ordinance of the city of Bristol; but the alleged violation of that ordinance is commingled with the averments that the defendant was derelict in its duty to the decedent in pushing, instead of pulling, its train across the trestle, and in not stationing a lookout on the end of the cars, to the combined effect of all of which the injury complained of is ascribed as the proximate cause. We are of opinion that a count in a declaration thus blending allegations of duty, only one of which imposes any obligation upon the defendant, and attributes the accident to the cumulative effect of all as the proximate cause, does not conform to the reasonable rule of pleading applicable to this class of cases, which requires that the duty alleged to be owing from the defendant and the acts of negligence relied on shall be stated with sufficient particularity and clearness to enable the defendant to understand the nature of the charge that he is called upon to answer.'

At the argument it was conceded that the allegation contained in the declaration of failure to keep a lookout was good as an allegation of actionable negligence. The inquiry then is whether this good allegation in the first count is so blended with the other separate and distinct allegations of running at an excessive speed and failure to give signals, which it is insisted do not constitute negligence, as to bring the count within the rule laid down in the case cited.

High speed alone is not negligence. The general rule is that a railroad company must be allowed to run its trains at such speed as seems to be convenient for the conduct of its business. But the rule has the limitation that the company cannot run its trains at a speed which, in view of special circumstances, subjects its employes or others to unusual and unnecessary peril. These circumstances may be the presence of defects in the track, or curves, or other structures, or some negligent act or omission of the company, such as having no lookout. Railroad v. Bishard, 147 F. 496, 78 C.C.A. 62; Meloy v. Railroad, 77 Iowa, 743, 42 N.W. 563, 4 L.R.A. 287, 14 Am.St.Rep. 325; Railway v. Lewis, 145 Ill. 67, 33 N.E. 960; New York, C. & St. L.R. Co. v. Kistler, 66 Ohio St. 326, 64 N.E. 130; Becke v. Missouri Pacific R. Co., 102 Mo. 544, 13 S.W. 1053, and note, 9 L.R.A. 157; Robertson v. Robertson, 147 Ala. 311, 40 So. 104, and note, 3 L.R.A. (N.S.) 774, 10 Ann.Cas. 1051; Atchison, T. & S.F.R. Co. v. Schriver, 80 Kan. 540, 103 P. 994, and note, 24 L.R.A.(N.S.) 492; N. & W. Ry. Co. v. R. S. Fritts, 103 Va. 687, 49 S.E. 971, 68 L.R.A. 864, 106 Am.St.Rep. 911; C. & O. Ry. Co. v. Clowes, 93 Va. 189, 24 S.E. 833; Chicago & N.W. Co. v. O'Brien, 153 F. 511, 82 C.C.A. 461.

While an engineer knows that work must be constantly done on different portions of the track, ordinarily he may assume that sectionmen will be on the lookout and protect themselves against a train run in the usual way, even at a very high speed. But this does not exempt him from the duty of keeping a lookout for trackmen who may be caught unawares, or who may be unable to get a hand car off in time, or of giving signals or stopping the train according to the circumstances; and the duty is more pressing if he is running at a high and unusual rate of speed. While, therefore, under ordinary conditions, neither high speed nor the failure to give signals, standing alone, would constitute negligence towards workmen on the track, both would aggravate the negligence of running without a lookout. Conversely, running at a very high rate of speed without a lookout would be negligence. It is not necessary to look at each of the three different charges of negligence separately as a distinct cause of action. If they are so related, as we think they are, that taken together they constitute one or more acts of negligence, it is sufficient.

We think this conclusion not inconsistent with the rule of N. & W. Ry. v. Stegall, supra. In that case the court held that the railroad owed only the duty of observing the speed ordinance of the city of Bristol, and that it was in such relation to the deceased that it would have owed no duty to him with respect to speed, but for the ordinance. Since the one act of negligence was founded on the ordinance, the plaintiff was limited to that, and could not claim that other acts entirely lawful could be added to the statutory offense as aggravation of it. In other words, there it was the ordinance, and not the surrounding circumstances, which made the rate of speed negligence, and therefore the other allegations of failing to keep a lookout and pushing the cars across the trestle could not be treated other than as separate innocent acts alleged and relied on as negligence in themselves.

The second count is more definite, and still less subject to demurrer. It alleges negligence (1) in failing to promulgate and enforce reasonable rules for the protection of Poteat, a section foreman; (2) in running the train at an unreasonable speed around a curve in a deep cut without ringing its bell or blowing its whistle, and without keeping any lookout for the protection of the decedent. It is not definitely alleged what the rules should have been, but it is sufficiently evident that the pleader meant to say that the defendant had failed to make reasonable rules as to giving signals, keeping a lookout, and regulating speed around a curve in a deep cut. It is not necessary to allege what the rules should have...