Swift v. Southern Railway Company

• Decision Date: 01 August 1962
• Docket Number: No. 8516.,8516.
• Citation: 307 F.2d 315
• Parties: C. David SWIFT, Administrator of the Estate of Berl B. Cantrell, Deceased, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

307 F.2d 315 (1962)

C. David SWIFT, Administrator of the Estate of Berl B. Cantrell, Deceased, Appellant, v. SOUTHERN RAILWAY COMPANY, Appellee.

No. 8516.

United States Court of Appeals Fourth Circuit.

Argued March 23, 1962.

Decided August 1, 1962.

John M. Schofield, Rock Hill, S. C. (Arch Schoch, High Point, N. C., on brief), for appellant.

Robert A. Collier, Jr., and R. A. Collier, Statesville, N. C. (William T. Joyner, Joyner & Howison, Raleigh, N. C., and Collier, Harris & Collier, Statesville, N. C., on brief), for appellee.

Before HAYNSWORTH, BOREMAN and J. SPENCER BELL, Circuit Judges.

HAYNSWORTH, Circuit Judge.

The principal question is whether the doctrine of last clear chance furnishes a permissive basis of recovery in this action for wrongful death of a decedent killed by one of the defendant's trains. We agree with the District Court that it does not.

As the train approached, Berl Cantrell was prone on the roadbed, down between the rails, his jacket pulled up over his head. He may have intended his destruction, but his position was one of apparent helplessness. The essential inquiry, therefore, is whether the evidence warranted a finding that the train crew should have seen and recognized him as a human being in time to stop the train before running over him.

Southern Railway Company, the defendant, operates, among others, a line running between Salisbury and Asheville, North Carolina. This line passes through the town of Valdese, North Carolina. Leaving Valdese, proceeding westwardly toward Asheville, this single track line enters a deep cut spanned by a bridge known as the Hoyle Street Bridge. Cantrell was lying between the rails at a point a few feet east of that bridge.

Shortly before 3:00 o'clock in the afternoon of January 4, 1960, a local westbound freight train approached the Hoyle Street Bridge. It slowed as it passed through the central portion of Valdese, but increased its speed to thirty-five to forty miles per hour as it approached and negotiated a curve to the left within sight of the Hoyle Street Bridge. There was testimony that the rails beneath the bridge could be seen from a point 1050 feet east of the bridge, measured along the curve of the track. The view from that point would be across the curve and an object down between the rails close to the bridge would be partially or wholly obscured by the near rail. The west end of the curve to the left was some 500 to 600 feet from the Hoyle Street Bridge, and only when the train reached that point would the view of the roadbed between the rails close to the bridge cease to be obstructed by the near rail.

While there was testimony that one could look across the curve and see the rails beneath the bridge from a distance of 1050 feet, measured along the track, there was no testimony and no indication that, from that distance, one could see, and recognize as such, the body of a man down between the rails close to the bridge. The engineer and fireman of the train testified that, as they came out of the curve, they saw an object down between the rails close to the bridge. One thought at first it was a piece of brown paper, the other a piece of asbestos, objects which they expected to see in that vicinity. When the train was within 200 to 250 feet of the object, they recognized, at about the same time, that the object looked like a human being. There was an exclamation from one of the crewmen and, at the same time, the engineer applied the brakes with sand on the rails. Nevertheless, with the brakes and associated equipment in full emergency operation, the train ran over Cantrell and proceeded on for a further distance of approximately 1000 feet, or 25 car lengths. The Chief of the Valdese Police Force testified that he observed the sand, evidence of emergency braking, and that he paced off the distance between the point where Cantrell was struck by the train to the point where it was finally brought to a halt and found it to be 1000 feet.

As the train approached the bridge, it was proceeding on a downgrade. A surveyor, a witness for the plaintiff, testified that in the 600 feet, east of the bridge, the grade was falling in the direction the train was going at a rate of .7 to 1-foot in each 100 feet.

At the time, Berl Cantrell was only 22 years old. Three years earlier he had been severely injured in an automobile accident. After the accident he received a medical discharge from the Air Force with a diagnosis of traumatic encephalopathy. He experienced blackouts and was required to return from time to time to Walter Reed Hospital for treatment. On the morning of the day he was killed, he complained of a very severe headache, with which he had suffered during the preceding night. Some seven months earlier he had married, but his wife had gone to her home in Georgia for a visit just after Christmas in 1959, and Cantrell was staying with his mother at the time of his death. He left his mother's home after lunch on that day, stating that he intended to go to Crest Line Furniture Company, by whom he had been employed for a time, for the purpose of getting some papers in connection with a loan and some insurance.

Crest Line's plant is south of the railroad at a point several hundred feet east of the Hoyle Street Bridge. Some of its employees crossed to and from the north side of the railroad, and there were defined footpaths crossing the railroad near the plant. There was no evidence of any such path or traffic in the cut near the bridge, however, and no evidence that Cantrell, normally or possibly, would have walked the train track through the cut in going from his mother's home to the Crest Line plant.

Nevertheless, it is undeniable that he was on the track between the rails in the cut near the bridge. How he got there is unexplained, though there is speculation that he jumped or fell from the bridge, that he lay down between the rails and pulled his jacket over his head with the intention of destroying himself, and, finally, that, for some reason, he was walking the track through the cut, blacked out and fell, unconscious, between the rails in the position in which he was later run over.

Long ago the North Carolina Supreme Court adopted that humanitarian variant of proximate causation, which has come to be known as the doctrine of last clear chance.¹ Under that doctrine, the antecedent negligence of one killed or injured is not treated as a proximate cause of the injury if the other party had an opportunity to avoid the injury and failed to exercise due care to do so. Applied by the North Carolina Supreme Court, whose decisions govern us in this diversity case, it becomes applicable only upon proof, (1) that the decedent was killed by the defendant's train, (2) that before he was struck, the decedent was down on the track in a condition of apparent helplessness, (3) that the engineer saw, or should have seen, the decedent and recognized him to be a human being in time to stop the train before striking him, and (4) the engineer thereafter failed to exercise ordinary care to bring the train to a stop.²

There is no doubt, however, that North Carolina strictly enforces the pre-requisite conditions before it permits recovery upon the basis of the doctrine of last clear chance in cases comparable to this one. The defendant asserts that the North Carolina Supreme Court has sanctioned submission of the issue to the jury in comparable cases only twice since 1935.³ Our research has disclosed other instances,⁴ but it appears that submission of the issue is not sanctioned in that state, unless there is clear proof of the decedent's apparent obliviousness of danger⁵ and of an actual opportunity by the crewmen of the train to avoid striking him.⁶

In North Carolina, an engineer is under no duty to apply his brakes or to make any move to stop his train when he sees an object upon the track. The duty arises only when he sees and recognizes the object as a human being, or, when, in the exercise of due care, he should have seen and recognized the object as a human being and realized that the person was in a state of danger and of helplessness.⁷ As the court said in Long v. Norfolk & Western Ry. Co., 222 N.C. 523, 23 S.E.2d 849:

"It is not the duty of an engineer to stop his train every time he sees some object on the track. The plaintiff must show that the engineer saw, or by the exercise of ordinary care could have seen, an object having the appearance of a human being lying on or dangerously near the track, and that he saw it, or by the exercise of ordinary care could have seen it, in time to stop his train before striking the body."

In applying these principles here, it is apparent there was a failure of proof of the requirement for application of the doctrine, strictly observed in North Carolina, that the crewmen of the train had a real opportunity to avoid injury to Cantrell. The testimony shows that the brakes were applied at least 200 feet before the train reached Cantrell and that, thereafter, there was nothing the train crew could do that was not done by them. Nevertheless, the train traveled approximately 1200 feet, or more, from the time of application of the brakes until the train came to a halt.

As we have noted, there was testimony that one looking across the curve could see the rails beneath the Hoyle Street Bridge, or at least the near rail, from a distance of 1050 feet, measured along the track, but there was no testimony by anyone that a person down between the rails near the bridge could be seen and recognized as a human being from any such distance. The engineer and fireman testified that they first saw Cantrell as they came out of the curve some 500 to 600 feet away from him. If the testimony might be susceptible to an inference that, in exercise of due care, they immediately should have recognized that the object was a man and not a piece of paper or asbestos, there is no showing whatever that the train, at that...