Stratton v. Southern Ry. Co., 6265.

• Decision Date: 10 August 1951
• Docket Number: No. 6265.,6265.
• Citation: 190 F.2d 917,27 ALR 2d 363
• Parties: STRATTON v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

27 ALR 2d 363, 190 F.2d 917 (1951)

STRATTON v. SOUTHERN RY. CO.

No. 6265.

United States Court of Appeals Fourth Circuit.

Argued June 15, 1951.

Decided August 10, 1951.

Frank H. Kennedy, Charlotte, N. C. (Marcus T. Hickman, Charlotte, N. C., on the brief), for appellant.

John M. Robinson, Charlotte, N. C. (W. T. Joyner, Raleigh, N. C., Hunter M. Jones and John M. Robinson, Jr., Charlotte, N. C., on the brief), for appellee.

Before PARKER, Chief Judge, SOPER, Circuit Judge, and WYCHE, District Judge.

PARKER, Chief Judge.

This is an appeal by plaintiff in a personal injury case from a judgment for defendant entered upon the granting of a motion to dismiss under Fed.Rules Civ.Proc. Rule 41(b), 28 U.S.C.A., at the conclusion of plaintiff's evidence. Plaintiff was injured while crossing between freight cars which were blocking a street crossing in the City of Charlotte. He offered evidence, which was excluded by the court, to the effect that there was a custom of long standing for members of the public to climb between cars which were allowed to block this crossing; and he contends that, in view of this custom, the defendant was guilty of negligence in suddenly moving the cars without signal of any sort and that this negligence was the proximate cause of his injury. The motion to dismiss was granted on the ground that plaintiff had failed to show that defendant was guilty of negligence which was the proximate cause of his injury and that he himself was guilty of contributory negligence. Three questions are presented by the appeal: (1) whether there was error in excluding the evidence offered as to the custom to cross between cars at this crossing; (2) whether there was evidence of negligence on the part of defendant sufficient to take the case to the jury; and (3) whether plaintiff was guilty of contributory negligence which barred him of recovery.

The crossing involved was the Fifth Street crossing in the heart of the City of Charlotte between College and Brevard Streets, only a few blocks from Independence Square. There was evidence that, although an ordinance of the city forbade the blocking of street crossings by cars for more than five minutes at a time, this crossing was often blocked for much longer periods; and the evidence which was excluded was to the effect that for a period of thirty years it had been customary, when the crossing was blocked, for persons to cross between the cars. Plaintiff's place of employment was on Fifth Street a short distance from the crossing. He was returning from lunch with a fellow employee, when upon reaching the crossing he found it blocked by a long line of cars, which continued to block it for a longer period than allowed by the ordinance. He looked for an engine, but saw none since it was at the end of a long string of cars and could not be seen because of the curving of the track. He testifies that, having no reason to think that the cars were about to be moved, he was following his fellow employee in an effort to cross between them, when, without warning signal or notice of any kind, the cars were suddenly and violently moved and he was thrown to the ground and received serious injuries.

The evidence offered as to the long continued custom on the part of members of the public to cross between cars when they were allowed to block this crossing was clearly competent. If the custom had existed for so long a time that defendant was chargeable with notice thereof, it should not have moved cars between which persons might be crossing in accordance with the custom, without giving some warning signal to apprise them of the danger. Powers v. Norfolk Southern R. Co., 166 N.C. 599, 82 S.E. 972; Thompson v. Aberdeen & A. R. Co., 149 N.C. 155, 62 S.E. 883; McCall v. Southern Ry. Co., 129 N.C. 298, 40 S.E. 67; Hord v. Southern Ry. Co., 129 N.C. 305, 40 S.E. 69; Baltimore & O. R. Co. v. Papa, 77 U.S.App.D.C. 202, 133 F.2d 413, 415. As said by Chief Justice Groner in the case last cited: "Furthermore, the uncontradicted evidence showed that it was a common practice for pedestrians, prevented from crossing over from one side of the street to the other by the presence of trains, to cross over the trains when at a standstill and that this was done with the consent, either tacit or express, of the employees of the Railroad Company in charge of the trains. Certainly the Railroad Company knew, or should have known, of this established practice. In such circumstances it became the duty of defendant to exercise reasonable care in the operation of the trains to avoid injuring them."

And we think it equally clear that, in the light of this evidence, the case was one for the jury on the issue of negligence. The rule applicable is well stated in 44 Am.Jur. pp. 743-744 as follows: "A railroad company which blocks a crossing for an unreasonable time or for a longer time than the law permits has been held to become itself a trespasser, and to be estopped to say that one who attempts to climb over its cars is a trespasser to whom no duty of care is owing, and is liable if those in charge of the train put it into motion without exercising due care to avoid injuring those who may be attempting to cross. In such a case, it becomes a question for the jury whether or not it is negligence for the company's servants to move the train without giving timely warning of their intention to do so, and it is immaterial that they did not have notice that some particular person was in a position of danger. Some cases hold that if the railroad company has been in the habit of obstructing a particular crossing and it has become customary for pedestrians to cross through the train while it stands over the crossing, it is the duty of the railroad to exercise reasonable care to avoid injuring such persons, by giving signals before moving the cars or closing openings in the train, or by giving persons sufficient time to get through safely before putting the cars in motion. Whether such care was exercised or not is generally...