*1 Before EDGERTON and WILBUR K. MILLER, JJ., and ALEXANDER HOLT- ZOFF, Judge, sitting by District designa- tion.
HOLTZOFF, Judge. District appeal by This is an the defendant from plaintiff judgment for the in an action to damages wrongful death, recover *2 54 be- court. The- collision tion grade by denied the trial
resulted a was from issues, an automobile. case the on a train was submitted tween the de- main- negligently whether question presented is whether was the and, so,, condition, verdict tained if a directed in an fendant’s motion for unsafe turn, in problem, the whether condition properly denied. the defective first, parts: the of the proximate be into two cause divided addition, question evidence death. of contrib- whether substantial In the there was of the utory a cause appellant’s negligence negligence left to the was likewise deceased and, second, jury.- the collision; whether as guilty analyzing Before the evidence matter of law. case, these use aspects it seems two deceased, her Postom, the Isabell principles ful to pertinent restate the passengers in sister, Lanford, Ordelia by governed. are be which these matters Osborne Mc- operated by one an automobile justify To case to the the submission seat in front Kinney. sat the The deceased stand, permit its verdict oc- driver, her sister next while evidence necessary be that there substantial sedan. cupied two-door the rear seat support be Washington proceeding from The car was of evidence reached. A mere scintilla Maryland, to a small suburban settlement is evi not sufficient. Substantial evidence Baltimore lying east tracks quality weight as dence would- such McKinney- way, On the and Ohio Railroad. justify man be sufficient to a reasonable across attempted the automobile to drive sought fact that is drawing the inference of Maryland point in railroad tracks to be sustained.1 If substantial going Crossing. sustain, as While known Millrace which, presented, credited, would if be- intersection, automobile over other,, party in favor of verdict the left lodged the tracks with came jury. should It is not case be left front the left crossing and off the wheels weigh on both: rails. A wedged between
wheel
down
do so is the-
sides of a contested issue. To
from the
approaching
freight
train was
jury.
If
evidence is-
function of the
Lanford
Ordelia
right.
conflicting, the conflict must
resolved
door of
through the
managed
alight
divergent
may be
jury.
If
inferences
escape
impending
the automobile
evidence,
of'
drawn
the selection
from
killed in
catastrophe.
deceased was
of'
proper deduction is
a function
also
ensuing impact
the train
between
contradictory,,
If
the evidence
the automobile.
process
reasoning
followed
the-
first,
comprise
steps:
di-
appellant
jury may
motion
de
made a
two
that there was
verdict,
ground
termine
account
the incident to.
rected
accept;
second,
negligence, and
to decide which of two.
evidence of
no substantial
ground
possible
deceased
further,
or more
inferences
should be
adopted.
contributory negligence
version so
a drawn from the
From-
was’guilty of
permits
failing to
the auto-
fact that
leave
the evidence
two
matter of law
mo-
injury.
possible inferences,
or more
it does
to avoid
mobile
time
not
Co.,
967; Bailey
610,
1
128
R.
v. Central
Northern Central
143
Kane v.
339;
Ry.,
353-354,
16,
350,
91,
Jones
Vermont
319
32
U.S.
L.Ed.
9 S.Ct.
U.S.
Co.,
1062,
1444;
Tennessee,
R.
128
87
& G.
S.Ct.
L.Ed.
V.
Tennant
East
478;
Co.,
29,
118,
35,
U.
32 L.Ed.
Peoria
P.
R.
321 U.S.
&
9 S.Ct.
U.S.
520;
Georgetown
Washington
v. Mc
64 S.Ct.
88 L.Ed.
Co.
Wilkerson v.
&
McCarthy,
53, 62,
seq.,
413;
Dade,
10 S.
336 U.S.
570 et
69
U.S.
S.Ct.
States,
235; Gunning
App.D.C. 344,
Cool
Smith
United
L.Ed.
Ct.
Brown,
ey,
74 L.
Bell v.
U.S.
U.S.
S.Ct
App.D.C. 5,
Na
Edison
128 F.2d
Shewmaker
Consolidated
Ed.
Board,
Capital
Co.,
U.S.App.D.C.
305 U.S.
Relations
Transit
tional Labor
Curley
83 L.Ed.
United
59 S.Ct.
U.S.App.D.C.
States,
seq,
Line R.
Coast
392 et
Atlantic
Tiller v.
.
67-68,
L.Ed.
FI2d 229
S.Ct.
U.S.
among
jury’s]
is to select
e.
function
necessarily
the evidence
follow that
conclusions
conflicting inferences and
to sustain
sufficient
substantial and is not
Ten
reasonable.”
which it considers most
substantial,
jury’s
To
finding.
*3
29,
Co.,
U.S.
R.
U.
nant v.
&
di
Peoria
P.
entirely in one
point
not
evidence need
35,
412,
409,
L.Ed. 520.2
S.Ct.
for a
motion
trial
on
rection. The
court
evidence
directed verdict must view
cases
expressions in some
True there are
standpoint
from the
most favorable
sup-
equal
give
facts
if the
the effect that
party.
assume
inferences,
must
adverse
conflicting
port to each of two
against
may
conflict
jury
resolve the
hy-
two
either of
or
with
are consistent
as
party,
facts
moving
and from
potheses,
estab-
be deemed
neither
his
draw
favorable
the inference most
ir-
analysis of such statements
lished.3 An
evidence
opponent.
If there is substantial
they
resistibly
conclusion
leads to the
made,
be
which
can
from
such deductions
principles
with the
(cid:127)cannot be reconciled
denied,
jury
must
as
the motion
be
adopted by majority
have
which
power
clothed with the function
just been
have
.the decisions and which
determining
The
make them.
whether to
rep-
do
summarized. These assertions
Supreme
frequently formulated
Court has
If
accepted view of the law.
resent the
principles.
quo
A
and reiterated
few
these
did,
they
have
determine
court would
from
will
opinions
tations
its
suffice:—“It
capa-
each case whether
that,
well
settled
where there is uncer
it an-
ble of
unless
one
tainty
negli
affirmative,
either
as to
existence of
swered this
in the
question
gence
negligence,
ques
or
trial would
ver-
directed
terminate
law,
fact,
really
then
decid-
dict.
court would
be
tion
not one of
but of
and to
fact, subject
ing questions
to a subse-
be
aby
jury;
settled
and this whether the
quent
part
veto
if
uncertainty arises from a conflict in the
court
issues to it.
submitted
testimony,
because,
being
the facts
undis
puted,
will honestly
fair-minded men
draw
claimed that the
different conclusions from them.” Rich
shape;
composed,
was in bad
that it was
mond & Danville R.
Powers, 149
Co. v.
part
least,
gravel,
at
this
of soft
43, 45,
748, 749,
U.S.
13 S.Ct.
ter of law. The will should not clearly show the case contributory negli- guilty ceased was have been submitted to the Osborne jury, particu- gence properly left to car, McKinney, the driver of the death proof issue larly burden of on this as the meeting young taken the two women to a appellant.5 was on the Saturday in the District of Columbia night. midnight proceeded About the three opinion issues We are of the nearby Maryland McKin- visit what negligence ney “joint” by the termed is shown jury and correctly submitted to the photographs to be received that the verdict is sustained substantial beyond just the Mill- Thomas Beer Tavern evidence. Crossing race B. Mc- on the & O. tracks. Kinney but, safely crossed the side track MILLER, Judge K. thirty WILBUR Circuit when he reached the main track some *5 (dissenting). further, crossing feet he missed or left the and the found himself on the ties to left of course, agree, I with these statements it, wheels, with his at least the left front “ * * * opinion: justi- court’s To the one, rail, against six the which was some fy the submission of a case to the and higher and one-half inches than the ties. stand, permit necessary to its verdict to it is and, seeing He could not extricate himself support that there be substantial evidence to coming, that a train was he shouted to the that be reached. A girls get to himself left the out. scintilla of evidence not sufficient. through two-door left door. sedan the Mrs. Substantial evidence is evidence of such Lanford, seat, was alone in the back who weight quality and as would sufficient to performed getting difficult out task justify in drawing a reasonable man the in- door, climbing same the dri- over ference of fact that is sought to be sus- seat, safety. escaped ver’s and to But Isa- tained.” But court should have added Postom, bell who was on the front seated observations those the settled rule that McKinney, car seat with did not leave the positive- when the of a witness is and was killed when the train struck it. She ly physical facts, contradicted asleep chatting had but with permitted give not be should it cre- approached companions they her dence. A verdict cannot be sustained when crossing. based, case, solely upon as it was in this good repair, The automobile was hav- reckless statements witness whose ing just passed inspection, lights and its falsehoods about the facts were McKinney to have clear view of enabled exposed by truth, photographic crossing approached per- as he it over a theory inherently whose of causation was straight He fectly road. said he was trav- impossible. testimony wholly Such with- per eling hour at ten miles and in second probative value out and is not “substantial stop gear. He did not and look before at- proof injury Burden occurred, issue con case, where the in this tributory negligence Maryland. is a Davis, matter of sub App.D.C. Paxson v. and, hence, governed by stantive 146, 148, 65 F.2d Tobin v. Penn local sylvania law of App.D.C. the forum. Erie Co., R. Co. Tompkins, 435; Giddings 304 U.S. Zellan, 58 S.Ct. 82 U.S. L.Ed. App.D.C. Maryland, Klaxon In Mfg. proof Co. v. Stentor Electric 313 U.S. the burden issue of con tributory S.Ct. 85 L.Ed. is on the defendant. Hoffman, Palmer Hopper, Kelly, 318 U.S. McGaw & Co. v. 145 Md. seq., et 161, 170, 63 S.Ct. 87 L.Ed. 125 A. Taxicab Co. v. Ot Columbia, A.L.R. 719. In tenritter, the District of 534-535, 151 Md. A. damages negli to recover State, Potomac Edison Co. v. gence governed by place the law of the Md. A. 163. to contain (on road) He was ends each side the main track.1' tempting cross outside planks it. There is about crossing. .That with the familiar hap- inside, he concerning what rails but none told McKinney 'knew all gravel caused auto- He loose had just struck the deduced pened train before the crossing or four Sunday. not him skid three He did -off mobile a. at 12:50 m. helplessly feet become left the cross- and to why his car missed or know against testified against lodged the far rail. He ing ties landed on wide, explain why eight feet attempted to rail. He never
n he cross”, enough for one car to a fourteen-foot wide the left end of drove off “Just was wide the road itself crossing. pass. the evi two cars to Monday McKinney returned to the On dence, evidence, and the pocketbooks. girls’ scene to look for negli the jury concluded the he examined While there gently maintained and constructed or it, said, gravel loosely he its the accident.2 condition caused piled nothing rails at the between the stop sir,.I No, you stopped A. didn’t look. Had looked 1 “Q. you you went "Q. is the next time When on the tracks? listened before went crossing? stop I No, sir, back went back A. A. I didn’t look.” evening following Monday following excerpts' the next from McKin Sunday goes Monday. morning. ney’s testimony support I you go back the resumé which given. questions “Q. What A. did back for? and an These I have goes pocketbooks they portions back I find are taken from various swers- placed continuity lost. transcript but are *6 you you “Q. ex- solely While were there did here convenience. just crossing again? you happened the I amine A. when reached “Q. What why my caught rails, looked see on the wheel I reached the A. When rails? gravel rail. the rail and in betwixt there was you grav- caught ‘‘Q. What my slipped did A. see? The and on the left wheel My caught in My el was twixt the rail. wheels left front wheel on the rail. slipped them and in that made them catch I cross it. rail and couldn’t again you you rail on the and I couldn’t cross. tell us “Q. Will how your Why you crossing happened get “Q. do think wheels and be- off the know; slipped? Well, gravel A. I on wouldn’t There was rails? A. tween the gravel got account of the bed and it rails, there I in and when twixt in twixt the slipped caught just slipped my off and on rail, the rail. front wheel in the just gravel piled caught “Q. Was this into gravel this on the rail. and loosely? space Yes, crossing? A. sir. wide “Q. How A. anything Or was “Q. there there ear Just wide cross. together? just piled anything It hold it A. was there between the “Q. Was crossing? there loose. side rails on either of A. day you crossing, “Q. were out there look- of I think On side either any plank ing, there was wood on the wood, some on outside of was there planks A. no gravel inside, ends? There wasn’t wood on twixt and the rail end, on twixt the rails. rails. the two * * * did your “Q. When it first become front wheel skid on Did ‘ÍQ. you why you gravel? dear reason Yes, A. sir. crossing gravel? Yes, missed this was the fact did skid on the A. “Q. It your gravel car skidded on this up that was sir. Yes, you built between the rails? speed going A. sir. “Q. were when What hap- crossing? knowed You mean when I you got what IA. would got pened? hung I say reason 10 miles an hour. gear you rail? in? A. I “Q. What were right. That It gear. “Q. A. was next second was in * day * * I you after back and went looked. Did see railroad “Q. shape your you pulled up What of “Q. sort sign to this cross- when lights? They good shape, A. ing? Yes, sir, were in sign, yes, all I seen the A. shape. burning; good They had sir. through inspection. night? Yes, been “Q. You saw it that A. good pretty view, then, You had a “Q. sir. you crossing up you stopped when drove to. of this- and and Had looked “Q. Yes, you I it. could see it? A. on the tracks? listened before went
5& of McKinney’s a bed em- And if of testimony of railroad Uncontradicted con- before, gravel be loosely piled unconfined ployees that, weeks fewa showed that, of time at the with strued' statement as a crossing been reconstructed had bal- pieces accident, immedi- amesite, were loose almost there a material which crossing, I hard-surfaced last on the ately flintlike hardness. solidifies into theory incredi- crossing tak- causation is nevertheless regret photographs com- against natural accident ble. For it is Wednesday following the en on .law experience rock on mon loose practicably received in cannot four three or crossing con- the automobile reproduced they show here threw because elevated bulk- the feet to the over the crossing left and clusively that the moving car at a rate McKinney not head when nature which described. per gear. had ten miles second company hour suggested venal alter the construction as to so Unless the verdict was based the ac- crossing the time of of the between caprice, Mc- must have believed taken. pictures were cident and the time the Kinney’s story nothing be- there photographs, Confronted with one except gravel tween the loose- rails a bed complained, picture don’t “This piled ends; ly at the unconfined gravel.” photographs show show no story McKinney’s had no to believe heavy rail main track that each permitted be- should not have been plank parallel it and side of it, photographs lieve because the reveal it, top They all with the of the rails. flush entirely different construc- also show at each end tion. bulkhead, heavy plank or beam be- sort of this, In a such situation the law is clear rails, ties, parallel with tween the well established. When proper. above the surface of a facts witness as is demon- photographs loosely do not show a absolutely photographs strated to be piled gravel bed, contrary but on the a false, a based verdict on that evidence alone hard-surface crossing. McKinney’s state- cannot stand. In Baltimore & O. R. v.Co. the crossing eight ment that was about feet Muldoon, Cir., 1939, *7 3 wide wide car for one to “Just court said: cross” by photograph was contradicted a principal question “The by the-ap- raised plainly in which is crossing wider than peal is whether the should court have not approaching McKinney’s the road it. com- declared plaintiff guilty picture ment from the stand as the was ex- negligence matter as a of law and directed was, him hibited to larger “It looks like a a verdict for the defendant. crossing than what was it then.” determining “In question the testi- there been in gravel Had fact a bed of mony light must be read in the most advan- loosely piled on crossing, an automobile tageous plaintiff, all therein conflicts it entering gear in second per at ten miles being favor, resolved his and he must be might it, hour have churned in every given the of every benefit fact infer- automobile driver knows that it would not ence which reasonably be deduced * * * upward have skidded over the elevated con- evidence. Nevertheless any fining plank testimony at the crossing by end is contradicted clearly proved and physi- landed some three or four uncontrovertible feet left. rejected.” cal facts be must McKinney’s story gravel But loosely piled simply true, photo- applied court then by reject rule plaintiff’s plainly ing graphs testimony show. that he when per- “Q. You How much? could see the A. “Q. Two cars can pass you
fectly up veil as the road. came A. there? your Yes, recollection, “Q. sir. And in best *** only any nar- Yes, 8 feet wide? Is Is “Q. your Yes, a fair the road out there? statement view? A. rower than A. sir.” sir. 60 principle is fol- generally accepted track he stopped the railroad at truck clear A lowed also in the state courts. ex- the west fifty feet able see position judge an eminent of the rule photographs because showed Brown, Inc., Coney found in Island point stopped he plaintiff where the 787- along Ky. 162 S.W.2d uninterrüpted view to the west 788: thousand than two tracks of more
feet.
is,
sure, ordinarily the function
“It
effec
weight
of a
jury'to determine the
have
courts
reit-
again
Time
federal
accep
But this
tiveness
evidence.
Hickey
said in
the rule.
It was
erated
power
prerogative of
tation of
Cir.,
Corp., 8
Missouri Pacific Railroad
quáli
subject
universal
quite
131:
not,
through
fication that
the'
that,
“It must
conceded
on the motion
reason, arbitrarily or
sympathy
or'
verdict,
plaintiff
defendant for directed
upon
state
its verdict
capriciously base
was entitled
have taken in his behalf the
something
or how
ment
what occurred
as to
testimony.
favorable
He
most
view
happened
opposed
it is
to the laws
when
however,
entitled,,
was not
to have credence
clearly
conflict with the
nature or is
given
testimony if
it conflicted with
upon
principles,
scientific
its verdict
or base
plain physical facts.”
testimony
is so incredible
improba
M.,
Chicago,
The court stated in
P.
contrary
St. & ble and
observation
common'
Linehan,
P.
Cir.,
experience
manifestly
R. Co. v.
66 F.2d and
as to be
without
probative
Evidence,
380:
Am.Jur.,
value.
1183; 1184; Jones,
Sections
Commentaries
“Defendant
physical
that the
facts
urges
Facts,
Evidence,
461;
Section
Moore' on
testimony
plaintiff.
contradict the
Annotations,
seq;
Section
et
undoubtedly
that,
if the
796;
recognized
have
21 A.L.R.
We
positively
facts
contradict
applied
many
the rule in
in a
cases
witness,
is not to be credi-
involving
number
various kinds of incredi
Missouri,
ted'by
K. & T.
ble
stories. See Louisville
Nashville
Collier, Cir.,
Co. v.
157 F.
Ameri-
Chambers,
Company
Ky.
Railroad
Kindermann,
Foundry
can Car &
1917B,
Ann.Cas.
S.W.
Cir.,
F.
F. W. Woolworth Co.
Company
Lally,
Louisville
Water
Davis,
Cir.,