Atlantic Coast Line Railroad Company v. Mrs Elizabeth Frances Futch

train blowed I looked and JONES, around RIVES, Before TUTTLE and him, didn’t see and I run Judges. to the front door and he was in the middle of the track. Judge. TUTTLE, Circuit “Q. Go ahead and tell us what appeal judgment is you And, er, did? er, A. so based on a verdict favor of got turned and come out and across mother for death of her 18 month old the rail. I run as hard Ias son on the rail track defendant got and I in, near I road. The ity vicin child struck eight say, or ten him feet of before leading parents’ of a from its struck him.” ques house to the tracks. The preserved tion, seriously argued defendant’s review appellee It is not dismiss, engineer ver motions directed either the fireman or that negligent dict, judgment anything n.o.v. and for new they did trial, seeing substan whether there failed do after that there was negligence tial evidence of a child on tracks.3 was, 1. this, er, child, The father was a section foreman for and sudden appellant object up. railroad. or at least raised Now sitting down or whether 2. The locomotive crossed the road just bending say, it over I couldn’t striking 322 feet before the child. up recognized raised and but I it as story happened yelled engineer The fireman’s of what big I a child. put follows: hole it. That means to the brakes in Well, looking emergency, “A. I was out the side and he the brakes emergency immediately. window to watch for the train Well, order I tried to They open speed board. have a board there call the door and the that we going the train order board. The sun was and the force of wind as shining bright looking opened my Well, and I was cap out for I the door blew off. board, my this train order and I enough saw it distracted attention position. posi- I the clear called the the door slammed shut and it come back inside, past tion of the board to the crew go where the latch would board, hasp there, we had a clear there was imagine into the or at I least something caught my you in that you area that know, hasp, would call it a being bright anyhow beyond attention. the sun point, it was forced everything, just I bump and couldn’t tell what and I had to the door several might I be. come back on the open, inside before I could times force it and up got get locomotive stood engine tried to out to the front of the there, thinking into the shaded area where I could look could shove glass thru get door. still the child off of the track if I could just exactly couldn’t make out locomotive, out to the front of the but this

70$ already in emer- casions to the brakes were After may point, astride gency, saw tracks at this child rail. The hand under a take body precautions sixty injury such prevent and to knocked some right persons to such hand side as would came to rest on meet the requirements ordinary track. and care diligence.” receiving engineer upon alarm The having After emergency deliberated two and tes- in threw the brakes hours, jury stop. returned to the and box a remarkable tified that he made its foreman stated that, to the court: however, consumed a Even “ * * * forty lengths, feet. to car The is not clear only applied regard been your charge The brakes had in to the law According to 350 feet child. about the in front of the sec- speed fireman, the and the by tion foreman’s house used braking forty- the train before was public. That seems to be the per right miles hour. Even if the five trouble now.” traveling only per miles fifteen repeated The portion then court it could hour, the evidence showed that including charge, its heretofore reaching stopped before quoted. Thereafter the reached its- the child. plaintiff. verdict in favor of the charged jury in district court charge- of the court’s part as follows: quoted language which has been is in “* * * persons habitu- Supreme where Court of in ally, with without and Michael, Western & Atlantic R. Co. v. disapproval 1932, 1, com- 41, quoted the railroad Ga. 165 S.E. way Bridges private passage pany, Railway Co., use a v. Southern crossing purpose Ga.App. 497, the tracks 100 S.E.2d given company point, imposes at a of the employees 620. The rule stated thus charge company the track only upon employees of its who are aware company of one trains “the given trains, bound on of the custom oc- of one of its who are way by ly spotted, right as we too, shade was back off to the left. and first saw it. hand rail. child straight. shining get “A. “A. right straight my sight putting ^[*****] ***** out there and stepping down whenever was at the left hand rail whenever I hand rounding my After —when—after process rounded the curve the sun At completely, We eyes both hands down on the rail I was rail, stepped ^[*] on the over one foot at the It there was headed I so I could the curve timo crossed only into the sun. maybe thinking maybe crossed ^[*] right was another hazard made it about half bright almost over first shove it across I was child went hand side. almost direct- see, and the sun ^[*] over to the sun saw it we child was trying directly, off, I could shining time. ^[*] right then rail, and out I couldn’t tually in the wasn’t moving seconds? foot the front. child on the shoulder, over, seconds. tbere and the child went out of eye tive. right straightened all.” “A. “Q. put ^[*****] on this over and it hand rail. To cross over this rail and all I never did see And recognize engineer’s eyes, it? A. both hands on the Well, from the left hand rail bending over, and then A. That was that, yon say, yelled ‘big up, child, track,’ at hand made it half Yes, the time I saw it stood it time looked trying side of the locomo- and then it started sir. up. hole I was —I had and I didn’t ac- straighten up the other your eyes too, back over child until rail, put it, get way only there’s a my sight to the a few out sitting a few down- now, foot one my its dimly sup- (Emphasis is seen the custom.” aware of appellee’s photograph emphasized into plied.) lead That yard directly porch Railway supra, Bridges Co., the front v. Southern wholly private the house. It page thus as follows: S.E.2d property pub- and was no extension of a agents railroad “Where way. Anyone crossing lic tracks to engaged operation of necessarily or from the leave cross- no train have appellee’s or enter diately imme- it in front crossing, ing is not a steps. at her front established aor Inasmuch as the locomotive blew crossing law, the railroad which or a crossing required little whistle for the keep up, keeps up helps but or to community’s crossing, road it is not con- by pub- commonlyused the which is negligent tended that the railroad was disapproval express lic without the respect any obligation in of of care only duty railroad, owed of the the persons owed to who trespasser upon near the tracks or or tracks at about the or station wilfully point or to at such is not crossing. only at or about the It is wantonly injure pres- him after his duty arising of the from the railroad Vaughn actually ence discovered. is using private likelihood of Ga.App. Co., R. v. Louisville & N. path that the trial court felt warranted 135(4), 185 145.” S.E. sending jury. the case to the parties stipulated to correct- The testimony path The on the use of the diagram ness by agreement. that was introduced of vague frequency was as to the of use diagram, plat, or during the time when notice must be spot hit showed where the child was brought company home to the railroad being point some operators and the Al- the trains. projected, path, which the though one witness testified that in the cross the to track. It at least forty-two years he had lived in the com- point.4 from such The feet down track munity he had used it “thousands significance plain- is this fact that times,” (if every he used it once other lived, house, in tiff’s which day thirty years for this would amount along fifty fronted some times) only to five thousand he said that right-of-way. yard was railroad The he had used it “on several occasions” in the “last three or four any separated by from the track years.” steep slope, hedge, or The ditch. fence photographs clearly easy plaintiff The show that ac- introduced no evi- direct knowledge any private dence of cess from could be had to the cross- tracks ing by any yard. member of the of the railroad crew There is no charge operation right- of the of the train. railroad that child entered the given by There was evidence several of-way path at the rather than some local residents addition the section point yard other where the abutted the family they foreman’s had respects that crossed track. This in all situation was place abutting at this fre- any the tracks quency. some rail- similar to house grown There was no witness who ever road person where either child or tracks being on step testified or about the from his front on- seeing crossing or others there when or any will. The difference track at appellant private path. locomotive train or here is there was this that testimony places) be considered cannot The inconsistent Hr. Futch fixing place of the accident as to the where the child hit agreed plat (he than somewhere other testified at one agreement parties correct, The themselves. at another that he would open “right path; court the child was in” the counsel identifying photographs, placed this issue. resolves correct spot still two somewhat different charge,5 expressed re- passing. is thus no court’s still There railroad usage quires public use proof was ever occurred crossing by opera- operators brought attention any The antici- train. other exist before tors of this knowledge pate Bridges peril arises. v. South- had no crew all testified Railway supra. anyone ern Co. used this crossing. engineer, fireman The There no evidence never brakeman testified “em- the ployees could have found that the path. any person about the seen company ** engineer, on the run who its train” had years, : off said and on persons “habitually pri- [the] used path or “I know whether didn’t passageway purpose of vate little streak I had noticed a not. there, tracks,” mo- the defendant’s that was noticed hadn’t tion for close verdict at the directed going anyone path. I hadn’t never seen granted. the case should have been forth it.” back and judgment judg- reversed course, proof is ment there rendered the defendant. Of where permit an would which circumstances of Judge RIVES, (dissenting). operating crew the of inference that Respectfully, earnestly passage a as as lies of but habitual use train knew of way My crossing, me, within I dissent. brothers and where there or testimony vicinity categorical undisputed child was struck “in the that no * * * ”; diagram, may path contrary jury question of a arise “this that plat, spot operator did or child in fact showed the where the whether the crossing. was hit some habitual Such as know Birmingham Railway point path, projected, which the if Macon & cases Parker, would the track. least 127 Ga. S.E. cross It was at v.Co. Georgia R., 127 Ga. 55 12 R. feet down track from such and Shaw point”; Such the case here. “there is that was not that no evidence S.E. right-of- testimony Assuming use here the child entered the railroad that way path use rather such a “habitual” at the than at some oth- established point as referred to in the use is er where abutted the “common” cases, statements, and the Shaw & Atlantic In with their Western track.” those supporting supra, had come and that such use to the footnote and meas- niceties of company, my urement, position of the railroad as brothers take a proof appellant Shaw was the state favor of which not it did any testimony case, is no that use wit- evidence take in the of its there itself by, any way trial, upon inor which it was ever observed brought nesses and for to, the attention crew contend and does con- did not there train, appeal. as so to draw issue their As I read the rec- of this categorical tend ord, this disputed that knew there has never been statements was, therefore, that, path, there was use. There issue of no such if deference, point. issue on this essential it. With do not think no diagram photographs law, heavy with the or the even that up sent original places support railroad, as exhibits con- as care example heavy would burden hold otherwise defeat an less social 5. As utility required the law of and economic railroads. In Penn care present Reading Co., Cir., sylvania, the train would see Sabo v. traveling page 694, no where had than to be more ten F.2d stopped miles hour to have within the said: visibility, right completely paramount has distance feating thus de- “A railroad * * * purpose transportation way act its and is entitled to that, presumption medium.” there will be no ** trespassers To tracks. briefly my on so testified. to the testi- brothers refer Btruction which assuming mony them, do, five of them. Futch testi- such Mr. that living family people dis- fied his not influence the construction should position appeal. used the That is because houses back of him had this express- path principle from far back of ly recognized across the track the well-established Dorsey appellant as 1942. testified Mrs. O. C. “ * * * crossing (p. 5) concede she had known brief we City, about in time she had been that the be considered evidence must twenty years. aspect plaintiff, Mr. Matthew its most Webster favorable family every used infer- testified that had fair and reasonable he his Hollis, justifies.” The it thirty-six years 1925. Mr. Robert L. ence only since judge old, position had lived in Junction was in who witness City respect of his life and testified that location with child’s exact father, who, had since been there ever was the child’s Hester, son, desperate could remember. Mr. M. J. in a effort rescue his Mayor “eight City, point had of Junction had lived there reached a ten life, forty-two years, all of testi- him He before the train struck him.” fied he had crossed railroad testified: tracks at “thousands child off of How far was the family times,” and that members of his hit, that is when was crossed there. right projected A. on over the railroad? course, was no evi- Of there direct (Rec- say he was in it.” cross- dence of 51.) p. ord ing by members of the railroad crew in charge fact-finding body, operation of the of the train. ever, Rarely, if can such a this testi direct and it had to believe available, plaintiff mony, especially so, unless the is so since neither of be eye fortunate as to obtain admissions from other witnesses testified to the Unexpectedly, contrary. employees. the Railroad’s a case, admissions, care- in this fully there were path The existence of the was denied guarded true, part of it is by Railroad, but the evidence is knowledge of the locomotive of way. Indeed, one Railroad’s attor- there,” “a little streak down and on the ney stated, “I himself that there’s admit the brakeman of of something you which can a there call something “a trail there.”1 path you (Rec- want to call it one.” 59.) p. ord strange permits a rule It is testimony to let the members of crew There no conflict in the Railroad its operation by path of the a train the habitual use of the ignorant involving public. remain of a condition members Ten of the witnesses a In the which led on over towards the such uncontradicted testi- tion bouse face of mony, plaintiff’s No, A. sir. sure at- station? I feel you torneys stipulate ever noticed “Q. Had it? A. did intend to their public have never noticed there client out of court. path there. Engineer you Phiel testified: whether call it “Q. path you not, knew “Q. You to the sec- ever noticed or Well, it? A. you? house, foreman’s didn’t tion Well, A. looked like a I noticed trail or something there, didn’t know whether it was a but whether it awas path not. I had noticed a little streak I don’t know. there, you but I hadn’t noticed that In the time that “Q. path. any- you people hadn’t never seen had seen over there going you? area, and forth on back it.” hadn’t A. The times by there, stopped Melvin the times I’ve Brakeman testified: I’ve been Melvin, you anybody Mr. did know I’ve never saw cross that there place.” of this down from existence the see persons danger public, may upon neces- be track at to members sarily employees place, they duty and to certain known other are under a to Knowledge precautions prevent should to the Railroad itself. take such to imputed injury persons to of the crew. Of to be course, members such would meet requirements ordinary care ” by diligence.’ proved circum- crew Am.Jur., stances. said in Evi- As Ry. In Parker, 1907, Macon B. Co. v. & many dence, p. “In in- 260: Sec. 616, 617, 127 Ga. 56 S.E. Geor- only by proved cir- facts stances can be gia Supreme reiterated: Court cumstantial Such evidence is evidence. “* * * Case, In Shaw’s su- usually proving intent, means pra 960], expressly S.E. [55 * * knowledge, question ruled that the as to wheth- Supreme Georgia, speak- by pedestri- er Court of there use was such ing R., 1906, ans, in Shaw R. v. the use whether was of 960, 961, 962, Ga. said: S.E. such to character as the defend- circumstances are such that the the trians, track, pacity and consideration and observed employés the track within that but, conditions engineer matters which should be taken into within a the the track at anticipate bound to use dence was such those fendant ans on injury been submitted to exist destrians as case ticular use of “In question track machinery, presence defendant frequency among to such an operating the railroad view of the evidence for depend upon has reason to he the the or not the use was shown to given distance, where, the surrounding discovering any others, the condition of capacity approaching track, of one ordinary the track. company, one presence fact, of its use question the pathway, extent the cars of the de- company from the place. who track, condition of then homicide, * require it should have the for care to avoid distance, we and the ca- *. ‘Where each To do this at the apprehend If particular by pedes- known publicity pedestri- think, stopping presence frequent the evi- them require one on in this par- the say pe- on v. Eastern Air lows: cently spoke ment United States and under the federal de- cisions. Of Amendment to the Constitution of the F.2d the make the as to Wright questions tering Cir., erly sential characteristic of that was the all the circumstances of the case. Under the evidence in this ticipate and not for the ^[*] nation In an destrians at ant and those upon Southern S.E. “ * “* * * independent system 443, ^[*] applies invoke its 1952, others v. Paramount-Richards notice and questions 39, 41, earlier -x-» justice ** Railroad’s for the 445. The were such under the Seventh measure course, Ry. decisions did not so in a 198 F.2d probable presence tried diversity cases, The federal Lines, Cir., 1955, jury. jj. wag Co., 1902, jurisdiction. operating jury, diversity require litigants court, the Seventh Amend- fact Supreme particular place, been said: 303, * * * £or federal for adminis- would still for determi- and them an- 305; who case as fol- case, system its trains its breach ” Court re- Theatres, system An es- the same Ga. under prop- Bullard jury, Reuter courts. even clearly pe- which, bound, of one of its trains are on is the manner in in civil com- given occasion, actions, mon-law it distributes trial up Sands, at Brown two miles south judge and functions between City, The not Junction loaded with sand. and, influence—if under the picked extra up Oglethorpe diesel locomotive Seventh command—of purpose of han- assigns Amendment, the decisions dling heavy ap- The questions load sand. disputed of fact to according York, proximate tonnage, City total jury. New Jacob v. conductor, 854, L.Ed. was 1495 tons. 752 [62 315 U.S. S.Ct. 1166].” City approached The train Junction 1958, Ridge Byrd Cooperative, traveling northwesterly Blue on ain direction 2 L. 78 S.Ct. degree U.S. a five the left. curve to per reversals Ed.2d Two curiam reaches curve continues until it past few grade our Fifth within The 361 feet south of station. years have, effect, us admonished approaching a mile about diversity protected City eases are downgrade, verdicts per and is a cent Neverthe- Amendment.2 the Seventh the last 1424 scene less, deference, seventy-seven I submit that with one-hun- accident is a we present downgrade. per decision makes obvious loco- dredths cent The yet learned lesson. motive had road crossed the 322 feet before the child. struck amply The sufficient negli- found could have engineer was seated on gross gence, negligence, on the even left hand and fireman side eas- The child was of the Railroad crew. locomotive, hand side of the diesel lead ily observable, a dia- as was in he dressed both 10 or 12 feet seats back bright per white shirt. red and and from the front of the locomotive. him after father first saw When the P.M. accident occurred at about 6:18 standing up blew, the child was shining May 14, 1957. The sun was facing away from the middle the track brightly directly at a the cab but into the house. changing angle as locomotive round- According ed fire- sir, the curve. both to the Yes, “A. he turned and then sun inter- man to come back. fered their vision to some extent. standing "Q. up? A. Was he necessity local Yes, No was shown sir, and he walked back to traveling freight heavily loaded, train so rail little hand on curve, downgrade, around a stepped into rail on the head over bright sun, within two miles afternoon the tie.” taking after on the heaviest freight train local was gather forty-five speed load, miles originated Fitzgerald des- and was at through per passing a com- hour when Georgia. Manchester, tined for It was munity pedestrians ex- be where running any schedule, strict time brought to pected, not be it could so that through City pass but could Junction at emergency stop within morning from in the time 11:30 third of a mile. than more night 51). (Record 38, pp. 9:00 It Evidently implying locomotives, that the excessive unit consisted of twenty-four freight diesel two proximate cause speed cars, was not and a caboose. say: death, my empty, brothers “Even were child’s cars were three Six of the traveling only fifteen been scrap iron, train had was loaded loaded with per hour, picked the evidence showed feed, miles fourteen 16, 77, 874, 1 L.Ed.2d S.Ct. 77 Railroad 352 U.S. reversing v. Coast Line Atlantic Swafford 2. 13; Cir., 80, F.2d see Pro Co., 807, 232 1955, 5 S.Ct. U.S. Diversity Cases, Jury reversing Cir., 725, E.2d tection by Trial — 35 L.Ed. 901, Green, Texas Law Re grade crossing case, Dean Leon a railroad Phillips Co., 768. Petroleum v. view Gibson stopped before Under announced it could not have been the law as reaching They courts, overlook shown child.” opinion, cases no simultaneous it makes this three other cited child, young (1) as it difference child wandered whether the movements: moving pathway place onto was, safe- track toward a get ty; (2) trying some other where front fireman engine abuts the covery re tracks. There can be no out shove to the front of the track; (3) here because there is no evidence father child off of the negligence racing of the defend his child toward ant “eight railroad. him before within feet of or ten train struck him.” If the train petition rehearing is denied. traveling per hour, one fifteen miles Judge, RIVES, or more of those three movements dissents. probably life. have saved the child’s open

Certainly, so find. agree that it with the district court em-

was for the ployees operation of the anticipated prob- train should have presence person able LINE, INC., Petitioner, GRACE point where the on the track at the negligent, crossed and whether BOARD, FEDERAL MARITIME and circumstances under all of the facts Respondent. through running No. Docket 24872 forty-five City speed at a Appeals United States Court per miles hour. Second Circuit. judgment think should Argued Dec. 1958. affirmed. DecidedFeb. Rehearing Motion On Judge. TUTTLE, Circuit rehearing appellee In her motion incorrectly assessed that we have

states stipulated plat or dia- effect of gram the scene of accident. She plat was not intended

asserts precise point where the child to show struck; rather, said, it is to show other measure-

was introduced Since the measurements shown

ments. significance only accident, place of it is relate to parties understand how difficult to agree not have intended to spot well as the other dimensions Nevertheless, counsel, since shown. dissenting Judge opinion, in his RIVES majority

feel that has drawn im-

proper stipulated conclusions plat, we now preferable state have first instance:

Case Details

Case Name: Atlantic Coast Line Railroad Company v. Mrs Elizabeth Frances Futch

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Mar 5, 1959

Citation: 263 F.2d 701

Docket Number: 17369_1

Court Abbreviation: 5th Cir.