Virginian Ry. Co. v. Armentrout

Citation166 F.2d 400,4 ALR 2d 1064
Decision Date19 February 1948
Docket NumberNo. 5682.,5682.
CourtUnited States Courts of Appeals. United States Court of Appeals (4th Circuit)

Fletcher W. Mann, of Beckley, W. Va., (John R. Pendleton, of Princeton, W. Va., and J. O. Atkinson, of Norfolk, Va., on the brief), for appellant.

R. G. Lilly and A. A. Lilly, both of Charleston, W. Va., for appellee.

Before PARKER, SOPER and DOBIE, Circuit Judges.

PARKER, Judge.

This is the second appeal in the distressing case of the infant whose hands and portions of whose arms were cut off by a backing locomotive in Raleigh County, West Virginia. On the first trial of the case, the jury failed to agree on a verdict. On the second trial, verdict was given for the plaintiff in the sum of $100,000, which we set aside, awarding a new trial for errors in the charge of the Court. Although we did not find it necessary at that time to pass upon whether a new trial should have been awarded on the ground that the verdict was excessive, we adverted to the question in the opinion and pointed out that the jury had been allowed to pass upon elements of damage not proper for their consideration. See 158 F.2d 358. Upon the new trial the jury awarded a verdict for $160,000, which the trial judge sustained in denying a motion to set it aside as excessive, notwithstanding the affidavit of a juror that it was a quotient verdict. Three questions are presented by the appeal: (1) whether there was error in the admission of certain evidence and in permitting comment on an evidentiary matter; (2) whether there was error in the charge to the jury in unduly disparaging the testimony of the engineer in charge of the locomotive; and (3) whether there was an abuse of discretion in refusing to set aside the verdict as excessive.

The first question presents no matter of sufficient merit to justify discussion. There was objection to photographs on the ground that they had not been taken from the right place and to evidence of experiments on the ground that a proper foundation of fact had not been laid for them. If plaintiff's version of the facts be accepted, however, there can be no question as to the admissibility of this evidence, which was, at all events, a matter resting very largely in the discretion of the trial judge. Evidence that the engineer turned aside to wave at his daughter 1500 feet from the scene of the accident was objected to but was clearly admissible for the purpose of showing his position in the engine and what he was doing shortly before the accident occurred. Objection to the comment on the failure of defendant to make a stopping test is sufficiently answered by our former opinion in the case, wherein we said: "We do not question the right of plaintiff to comment on the failure to make the test".

The second question, which relates to the disparagement of the testimony of the engineer operating the locomotive, is one of very different character. The only questions of fact in the case arose in connection with the engineer's discharge of his duty as to keeping a proper lookout and using due care in stopping the engine; and with respect to all of these matters, he was defendant's principal witness, and the only witness who saw the accident. He testified he was keeping a proper lookout and that, as soon as he recognized that an object, which he first saw on the track a few seconds before the accident, was a baby, he applied the independent brake, sanded the rails and reversed the engine. This he contended was the proper procedure under the circumstances. In discussing his evidence as to these matters, the trial judge not only made argument in answer thereto but did so in such way as to disparage his statements and to imply that he was testifying falsely.

On the question as to whether the engineer sanded the rails at the time of applying the brakes and reversing the engine, there was a conflict of evidence as to sand being found on the rails afterwards; and, as to this, the court charged:

"There was conflicting evidence about sand on the rails and you will have to determine what to believe about that. That is not of great importance in this case, only as affecting the credibility of Mr. Murdock's other testimony.

"You see, as I told you a while ago, if you think that a witness testifies falsely about something, you don't need to believe him on anything, so if you believe that Murdock said he sanded the rail, knowing that he did not sand the rail, then that would be a false statement and you would not have to believe anything he said."

To show that the engineer was not keeping a proper lookout, plaintiff introduced three boys, two of whom testified that when about 300 feet from the crossing the engineer was waving to them. The two who so testified were brothers of the injured infant. The engineer denied waving to the boys and at one of the former trials testified that he could not have done so because of the way in which he was sitting in the cab. In this trial, when questioned on cross examination as to how he could wave at his daughter but could not wave at the boys, he answered that he meant he could not wave at them without turning around. This answer which seems upon its face to be reasonable and honest, was held up in the charge as an admission of falsehood and the falsus in uno falsus in omnibus rule applied to it as well as to the evidence with regard to sanding the rails; for, immediately after the portion of the charge just quoted, the court proceeded to say: "There were some contradictions that I think should be called to your attention in the evidence of two witnesses for the defendant. It is possible there may have been some contradictions in the testimony of the witnesses for plaintiff. I don't remember any particular ones. I am talking about contradictions now between what evidence they give at this trial and evidence they gave at a former trial in this case. Murdock had said at a former trial of this case that in the position in which he was sitting, when he testified that he was sitting in the same position that he was when he waved to his daughter so that we know that when he said before it was impossible, sitting in that position, to wave at his daughter, that that wasn't so — I mean to wave at these boys — that wasn't so, because he shows now that it was possible — not only possible, but he had done it just a minute before that."

The court similarly disparaged the testimony of the fireman Jackson, who had testified that the engineer was looking ahead and thus corroborated him on this crucial matter. Immediately following the charge above quoted, the judge said: "Mr. Jackson, in the former trial, testified to the effect that he hadn't noticed what Mr. Murdock was doing just before the accident. In this trial, he testifies that he looked at him — out of the corner of his eye it is true — nevertheless, he says, `I looked at him' and that `he was looking straight ahead and wasn't looking out the window'. That is a contradiction and you are entitled to draw conclusions from it."1

How differently the court treated plaintiff's testimony, when one of the three boys introduced by plaintiff testified that he did not see the engineer wave, is shown by the following portion of the charge:

"First, let me comment on the incident that was spoken of in the evidence, of the boys playing in the field. There were three boys, I believe, who testified, two of them brothers to this child, the other a friend of those boys. These two boys who were brothers said that they saw the engineer turn around and wave his hand; therefore, that he was not looking out in front as he should have been. The other boy said he was there, but he didn't see the engineer wave.

"Now, it was argued by counsel for the defendant, it was argued in two different ways. One argument by Mr. Mann was that because nobody saw those boys after the accident, and because the engineer didn't know them, and several other reasons that he gave, he concluded that the boys were not there at all. Then the argument of Mr. Pendleton was that because the Hamilton boy was looking at the engine and did not see the engineer wave, then the inference is that the other boys were not telling the truth.

"Now, it seems to me that you may draw such an inference as Mr. Pendleton argued, but of course if you do that, you would decide that the boys actually were there playing in the field; and by the way, the evidence, as I understood it, was not that this field was between the house and the crossing but that the field was farther down and probably up on the hill by the barn. So you could logically infer, and I believe should infer, that the boys were there; but you may draw the inference, as Mr. Pendleton argued, that this engineer did not wave, because there was a boy looking and reading the `805' on the side of the engine, and he didn't see the engineer wave, although the engineer was right there sitting just above that number `805'. But you would also be justified, too, in taking into consideration the fact that when different people see the same occurrence they don't always remember it alike, and also, the fact that the Hamilton boy said on the witness stand that he didn't see the engineer wave is a pretty good indication that this wasn't just manufactured testimony. Certainly if the plaintiff wanted to manufacture testimony, and produced three boys who said they were playing, he wouldn't have had two of the boys say they saw the engineer wave and the other boy say he didn't see the engineer wave. The logic of that situation would naturally lead to the inference that the testimony at least was not manufactured by the plaintiff, although it may have been manufactured by the two younger boys."

There was a conflict in the testimony as to whether the action of the engineer in applying the independent rather than the automatic brake was the exercise of due care under the circumstances. After calling attention to this...

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