Southern Ry. Co. v. Verelle
| Decision Date | 12 April 1932 |
| Docket Number | No. 3254.,3254. |
| Parties | SOUTHERN RY. CO. v. VERELLE. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Richard C. Kelly, of Greensboro, N. C., for appellant.
H. Woodward Winburn, of Greensboro, N. C., and Robert H. McNeill, of Washington, D. C. (Norma Janet Winburn, of Greensboro, N. C., and Thomas Clifford Carter, of Burlington, N. C., on the brief), for appellee.
Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.
This action was instituted by Alma Webb Verelle, administratrix of the estate of Charmlin Jones Verelle, and guardian of his minor children, against the Southern Railway Company, under the provisions of the Federal Employers' Liability Act, 45 U. S. C. §§ 51 to 59 (45 USCA §§ 51-59). Verelle, a railroad employee, was killed shortly before 8 a. m. on November 22, 1930, in the freight yard of the railway company, at Durham, N. C., when he walked upon a railroad track immediately in front of an approaching engine. The plaintiff claims that the evidence shows that Verelle did not see the approaching train, but that the fireman on the engine saw him in time to sound a warning and negligently failed to do so, and that by reason of this negligence, Verelle was struck by the engine and killed.
The theory of the defendant, on the other hand, is that Verelle's unfortunate death was due solely to his own negligence in walking in front of the train, and that there is no room for the application of the doctrine of the last clear chance because there was no opportunity to warn the deceased, or to prevent the accident after he was seen to be in a position of danger. Accordingly, the defendant moved the court to direct a verdict in its behalf; but the court, being of the opinion that the evidence was conflicting on the question raised, overruled the motion and submitted to the jury the following issues: (1) The negligence of the defendant; (2) the assumption of the risk by the deceased; and (3) the contributory negligence of the deceased. The jury found negligence on the part of the defendant, contributory negligence on the part of the deceased, but no assumption of risk on his part, and therefore found a verdict for the plaintiff in a substantial sum. The sole question for decision is whether the District Judge should have directed a verdict for the defendant.
Verelle was an experienced railroad man. He had worked for the railway company for twenty years prior to his death, and was then employed as flagman of a freight train running between Keysville, Va., and Durham, N. C. He had been on this run for almost two years, and was thoroughly familiar with the conditions at the railroad yard where he met his death. This place was a general classification yard, where trains were broken up and reassembled. There were four tracks used for this purpose, in addition to the regular track for through trains. The freight train, upon which the deceased was employed, had come down from Virginia the day before, and Verelle and others had slept in the caboose attached to the rear of the train in the yard during the night. He and his fellow workmen had taken breakfast, and the time was approaching when the train was to leave for Keysville. One of his duties as flagman was to record the numbers of the cars in the train in a book furnished for the purpose, and in order to do this work, it was necessary to walk along side of the train. Remarking that it was getting late and time to take the numbers, Verelle took up the book and left the caboose through the rear door. Within a few seconds after he had left the car, he was struck and killed by an engine approaching from the rear on a track adjoining that on which his train was standing.
There was only one eyewitness to the accident, namely, the fireman who sat in the cab of the engine on the side next to the caboose; and it is the testimony of this man, offered by the plaintiff, which furnishes the only open question in this case. He testified that as Verelle came out of the door of the caboose, he was facing the approaching engine in which the fireman sat, and that the engine was then only about ninety feet away. The engine was pulling a train of fifteen freight cars, at a speed of about fifteen miles an hour. Some noise must have been made by the approaching train, but the steam was not making much noise as the throttle was only slightly open. However, there was nothing to prevent Verelle, as he came out of the caboose, from seeing the engine on the track as it grew near. From the event, it seems certain that he did not see the train, but at the moment there was nothing in his actions to indicate this oversight. He walked down the steps of the caboose, face foremost, seemingly bent upon the business which he had to perform, and immediately walked in front of the moving engine. The space between the ends of the cross-ties of the adjoining track was about thirty-one inches, and this was the only distance he had to traverse before he was in danger, because the wall of the caboose on one side and the pilot beam of the engine on the other extended to the end of the cross-ties of their respective tracks or a little beyond. There is nothing in the evidence to show that the fireman had any reason to think that the deceased intended to step in front of the train. He testified on direct examination that as soon as Verelle stepped upon the track, he rang the bell, and on cross-examination, that the bell was rung the instant that he saw that Verelle was going in front of the engine; but it was too late and the man was caught before he could escape.
So far as this recital of the evidence has gone, it is clear that the deceased was solely responsible for his death. He was thoroughly familiar with his duties, and of the place where they were to be performed. The train was in full view, and he could have stayed in a place of safety on the caboose, or even in the small space between the tracks until the train had passed. The plaintiff, however, points out other parts of the fireman's testimony, and contends that these show that neglect on his part at least contributed to the accident. He testified that the engine was only thirty-five to forty feet away when Verelle stepped upon the track; that when Verelle reached the middle of the track, he turned to the left, and holding up the book before him, proceeded up the track with his back to the engine; that when he reached...
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