Thomson v. Anderson

Decision Date25 October 1943
Docket NumberNo. 12649.,12649.
Citation138 F.2d 272,149 ALR 899
PartiesTHOMSON v. ANDERSON.
CourtU.S. Court of Appeals — Eighth Circuit

Irwin A. Churchill, of Huron, S. D., for appellant.

Holton Davenport, of Sioux Falls, S. D. (Ellsworth E. Evans and Louis R. Hurwitz, both of Sioux Falls, S. D., on the brief), for appellee.

Before WOODROUGH, THOMAS, and JOHNSEN, Circuit Judges.

THOMAS, Circuit Judge.

The appellee, plaintiff in the lower court, as special administratrix of the estate of her deceased husband, Clark S. Anderson, brought this suit against the defendant to recover damages under the wrongful death statute of South Dakota for the death of her decedent. The defendant, appellant here, is trustee in reorganization proceedings of the property of the Chicago and Northwestern Railway Company. Plaintiff's complaint alleged that her decedent met his death on June 4, 1942, as the result of the negligence of the railway employees in the operation of one of its trains.

At the close of the evidence a motion for directed verdict was denied. A verdict was returned and judgment entered in favor of the plaintiff for $5,500 and costs. This appeal followed.

The defendant contends that the court erred on the trial of the case (1) in overruling the motion for a directed verdict; (2) in giving an instruction on the presumption of due care; and (3) in refusing two requested instructions.

The motion for a directed verdict alleged (a) that there was no proof of actionable negligence on the part of the defendant and (b) that the evidence established contributory negligence of the decedent as a matter of law.

Clark S. Anderson, plaintiff's decedent, lived at the time of the accident in the village of Vayland, South Dakota. A line of the defendant's road runs through the village approximately from east to west. The depot or station is a small wooden structure on the south side of the track. The door is on the west. Between the station and the track is a platform of cinders and gravel held in place at the north 38¼ inches from the track by a wooden curb 13 inches high. The platform is 11 feet 8 inches wide between the station and the curb, except that about the middle of the building is a projection from the main wall about two feet in width containing windows. At this point the platform narrows to 9 feet 6 inches in width. The railroad runs in a straight line and upgrade for a distance of approximately three miles west of the station. A switch post is 1036 feet east of the projection on the station.

Trains do not stop regularly at Vayland, but only when signaled to do so. No particular kind of signal was required. Any signal which informed the engineer that some one was waiting to become a passenger was sufficient. Two short blasts of the whistle constituted the acknowledgment that the signal had been observed and that the train would stop.

On the morning of June 4, 1942, Anderson accompanied his sister, now Mrs. Henderson, from his home in Vayland to the station to assist her with her bag and to signal the train scheduled to arrive about 4:53 a. m. The train was late that morning and did not actually arrive until 5:20. In the meantime Anderson and his sister waited in the station until they heard and saw the train approaching when they went out on the platform. Anderson signaled the train. The whistle sounded the usual response, but the train did not slow down and stop. As it passed the station Anderson was struck or run over and killed.

The plaintiff's theory and contention are that it was the duty of the engineer to approach the station, after the signal was given, with the train under control and to stop to receive the passenger; that Anderson, having given the signal and heard the whistle sound, had a right to expect the train to slow down and stop at the station; that, after giving the signal, he was standing on the platform at a point a few feet from its north edge, facing south toward his sister, with his back turned to the train; that, by reason of the negligence of the engineer, the train, unexpectedly to Anderson, passed at a speed of more than 60 or 70 miles per hour; and that the suction or force of the wind toward the train resulting from its rapid motion caused him to lose his balance and fall from the platform under the wheels of the train.

The defendant denies that the speed of the train as it passed the station produced air currents of sufficient force to unbalance Anderson and cause him to fall under the wheels of the train; that negligence of the defendant was not, therefore, and could not be the proximate cause of Anderson's death; and that Anderson was shown to have been guilty of contributory negligence, in that blood stains found on the pilot beam across the front of the locomotive after the accident occurred demonstrated conclusively that he was not on the platform when the train arrived at the station but instead was on the track or "too close" to it so that the pilot beam struck him.

Both theories were submitted to the jury and the first question for determination is whether the evidence is sufficient to support the verdict returned for the plaintiff both as to negligence and contributory negligence. It is conceded that in considering this issue this court must take that view of the evidence most favorable to plaintiff; that all conflicts must be resolved in favor of the plaintiff; and all permissible inferences from the evidence must be made in her favor.

The evidence bearing upon the issues of negligence and contributory negligence relates to five aspects of the tragedy: (1) the relative location of the train and of Anderson at the time the stop signal and the sound of the whistle in response thereto were given; (2) the exact position of Anderson when the locomotive arrived at the station; (3) the speed of the train as it passed the station; (4) whether the force and direction of the air currents produced by the passing train were under the circumstances sufficient to unbalance Anderson and cause him to fall from the platform toward and under the train; and (5) whether the evidence of blood stains found on the pilot beam after the accident occurred establishes conclusively that Anderson was down on the track or so close thereto that he was struck by the front end of the locomotive. The second and fifth of these topics are of course closely related.

These questions of fact arise principally because there was no eyewitness of the accident itself. The circumstances are detailed mainly in the testimony of Mrs. Henderson, the engineer, the fireman, and expert witnesses.

Mrs. Henderson testified that she and her brother, decedent Anderson, went to the station about 4:30 in the morning with her bag, expecting the train to arrive just before 5 o'clock. They sat down in the waiting room by the window that faces west. They were there about an hour. When the train came in sight four or five miles away they walked out around the station to a point opposite and a little east of the projection on the north side of the station. Anderson put the bag down where she stopped, then stepped between the curb along the platform and the south rail of the track and waved his right arm and hand. The train was at that time about a half mile away and in plain view. A loud whistle came from the locomotive. Anderson then stepped back up on the platform. Mrs. Henderson stood about four and a half or five feet from the east wall of the projection facing north. Anderson stopped about a foot and a half or two feet from her, between her and the north edge of the platform, facing south toward her with his back to the tracks; that he must have been four or four and a half feet from the north edge of the platform. The train did not slow down as Mrs. Henderson expected it to do and as it had done on previous occasions when she had been there but just passed by going like lightning. It seemed like they were going 70 miles an hour or better. She saw the engine go past, then the dust and cinders came up from the track, and smoke came, and she closed her eyes. She opened them just as the tail end of the train went past and her brother was not there. The wind blew off her coat and hat and drew her toward the train until "I don't know why I didn't go too." She testified that at the time she closed her eyes, just after the locomotive passed by, her brother was standing there and then when she opened them he was gone. She looked around for him, thought he must have gone with that suction, ran down the track toward the east until she came to the body. She then became bewildered, screamed, and left the scene.

The fireman on the locomotive testified that he sat at the north side of the cab as the train approached, looking forward through a window. He saw the station platform clearly at a distance of a quarter of a mile; he first saw a man and a woman standing there when the locomotive was 200 feet distant; the front end of the locomotive cut off his view of them when he was 100 feet distant. The woman was four or five feet from the north wall of the station. The woman was closer to the station and the man was closer to the track. His view was on an angle. He could not tell where she stood with regard to the window in the projection; that the man was quite close to the track facing the train; that he would say there were five or six feet between the woman and the man that the man's arm looked to be about above that curbing that his feet were on the platform; that his feet would have to be approximately the length of his arm to the south of the board curbing, two or three feet possibly; that he saw him only for the interval while the locomotive traveled one hundred feet that he was standing still, looking west facing the oncoming train, that his right arm was stretched out.

The fireman also testified that the whistle began to sound about a quarter of a mile west of the station; that the train was running about 50 miles an hour; that...

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