Turner v. Atlantic Coast Line Railroad Company, 18403.

• Decision Date: 20 July 1961
• Docket Number: No. 18403.,18403.
• Parties: Frances H. TURNER, as Guardian for Frank N. Turner, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

292 F.2d 586 (1961)

Frances H. TURNER, as Guardian for Frank N. Turner, Appellant, v. ATLANTIC COAST LINE RAILROAD COMPANY, Appellee.

No. 18403.

United States Court of Appeals Fifth Circuit.

July 20, 1961.

James A. Bagwell, Atlanta, Ga., for appellant.

Wm. B. Spann, Jr., James E. Thomas, Atlanta, Ga., Alston, Sibley, Miller, Spann & Schackelford, Atlanta, Ga., of counsel, for appellee.

Before TUTTLE, Chief Judge, and RIVES and WISDOM, Circuit Judges.

WISDOM, Circuit Judge.

The plaintiff below, as guardian of her husband, Frank N. Turner, an incompetent, appeals from the district court's granting of the defendant's motion for judgment under Rule 50(b), F.R.Civ.P., 28 U.S.C.A.

Around six in the morning of November 8, 1955, Frank Turner was driving his 1955 Ford Victoria automobile on the Hoffmeyer Road, a black asphalt farm-to-market road located outside the city limits of Florence, South Carolina. He had left home, five and a half miles away, about thirty minutes earlier. It was a dark and foggy morning and visibility was poor. Turner had his windshield wipers oscillating, his headlights burning, his radio playing, and his windows raised. On the side of the road, about 323 feet from the Hoffmeyer Crossing, there was a South Carolina railroad crossing sign of the reflector type. Near the rail on the right shoulder of the highway, eighteen feet from the crossing there was a standard railroad wooden "cross-buck" sign, painted with "Prismo", a light-reflecting paint. At that point the railway tracks consist of one set of main line tracks. At the same time Turner approached the crossing, an Atlantic Coast Line freight train of seventy cars was traveling over the crossing at approximately fifteen to eighteen miles per hour. Turner's automobile struck the fifty-third car of the train, derailing the freight car. The automobile was demolished; it was dragged but a few feet. Turner was severely and permanently injured: he is now an incompetent. At the time of his trial, because of complete amnesia, he was unable to testify.

The case was tried before a jury. At the close of the plaintiff's evidence, the defendant moved for a directed verdict. The court reserved its decision on this motion. After all of the evidence was submitted, the defendant again made a motion for a directed verdict. This motion was denied, too, and the case submitted to the jury. After a full day's deliberation the jury failed to agree on a verdict. The district court declared a mistrial. The defendant then filed a motion for judgment under Rule 50(b), F.R.Civ.P. The court granted this motion and entered judgment accordingly. The sole question on appeal is whether the district court erred in granting the defendant's motion for judgment.

The accident occurred in South Carolina where the common law doctrine of contributory negligence prevails. The parties concede that common law principles, as determined by Georgia courts, govern the merits of the case. Slaton v. Hall, 1929, 168 Ga. 710, 148 S.E. 741, 73 A.L.R. 891; Green v. Johnson, 1944, 71 Ga.App. 777, 32 S.E.2d 443; Craven v. Brighton Mills, 1952, 87 Ga.App. 126, 73 S.E.2d 248; Minter v. Kent, 1940, 62 Ga.App. 265, 8 S.E.2d 109.

The current principle controlling direction of a verdict is that a trial judge may grant a directed verdict only when there is no evidence which, if believed, would authorize a verdict against the movant; and, the trial judge must draw against the movant all reasonable inferences most favorable to the party opposing the motion. "If the evidence is of such a character that reasonable men in an impartial exercise of their judgment may reach different conclusions, then the case should be submitted to the jury." Swift & Co. v. Morgan & Sturdivant, 5 Cir., 1954, 214 F.2d 115, 116, 49 A.L.R.2d 924. See Galloway v. United States, 1943, 319 U.S. 372, 63 S.Ct. 1077, 87 L.Ed. 1458; Wilkerson v. McCarthy, 1949, 336 U.S. 53, 69 S.Ct. 413, 93 L.Ed. 497; Audirsch et al. v. Texas & Pacific Ry. Co., 5 Cir., 1952, 195 F.2d 629, 630. 2 Barron & Holtzoff, Federal Practice and Procedure, 760-6; 5 Moore, Federal Practice, §§ 50-50.02 (2d ed.); McBaine, Directed Verdicts, 31 Cal.L.Rev. 454 (1943); Blume, Origin and Development of the Directed Verdict, 48 Mich.L.Rev. 555 (1950).

There were no eye witnesses to the accident. The lower court, however, held that "the undisputed evidence in the record, though circumstantial as to the collision itself, will not sustain any inference except that Mr. Turner's negligence materially contributed to his injuries, even if negligence on the part of the Railroad was shown, which is doubtful." Turner was driving his automobile at a speed great enough to demolish his automobile and to derail a loaded freight car weighing 107,000 pounds.¹ Skid marks on the highway, measured immediately after the collision by the highway patrolman who investigated the accident, extended seventy-eight feet from the rails. There is uncontradicted testimony by expert witnesses for both the plaintiff and the defendant that an automobile driven at a speed of thirty miles an hour would brake to a complete stop on the Hoffmeyer Road, even if the pavement were damp, within a distance of fifty feet; and that a car traveling thirty-seven miles an hour would brake to a complete stop within seventy-eight feet. The only permissible inference is that Turner could have stopped within the seventy-eight feet if he had been driving at a safe speed.

The estimates calculated from the skid marks are not contested as such; the plaintiff contends that there is no evidence to show these skid marks were made by Turner's automobile.² The lower court held, and we agree, that reasonable minds could not differ on this question. The skid marks went right up to the tracks, and Turner's car was dragged along the tracks in the direction the train was moving. The marks were examined immediately after the collision. Other calculations as to the speed of Turner's automobile, made without regard to the skid marks, corroborate the estimates based on the skid marks. Dr. Stoneking, an experienced mechanical engineer, testified that the force required to derail the freight car and cause the...