273 F. 928 | 3rd Cir. | 1921
This is an action to recover for personal injuries to Hazel Holland received October 4, 1919, while riding on one of the trains operated by defendant between Rahway and-Newark, N. J. The train, composed of a locomotive and four cars, was derailed at South Elizabeth station, and the plaintiff Hazel Holland was thrown against a window of the car in which she was riding, and received the injuries of which she complains. At the conclusion of the case, the learned trial judge directed a verdict against tha plaintiffs on the ground that the evidence did not establish any negligence on the part of the defendant.
_ [2] The undisputed evidence shows that the derailment of the train in which the plaintiff Hazel Holland was riding was due to the breaking of a rail, caused by a lateral or “internal transverse fissure,” which was concealed and could not have been detected by the naked eye, and that no other test than the -actual breaking of the rail would have revealed this defect. The rail was made by the Maryland Steel Company, a reputable manufacturer of standard rails used by the Pennsylvania Railroad Company, the New York Central, and many other railroads throughout the United States. The rail had been in use about five years, which is only about one-third of the normal life of a rail, used as this one was. This particular piece of track, including this rail, was inspected daily by both the superintendent of maintenance and a trackwalker, the latter of whom had examined the track at the place of the accident about 15 minutes before it occurred. It has been held by the Court of Errors and Appeals of New Jersey, and also by this court that a defendant is not liable for injuries resulting from a latent defect of which it was ignorant, and which could not be discovered by reasonable care and diligence. Stassett v. Taylor Iron & Steel Co., 82 N. J. Law, 631, 83 Atl. 881; Pennsylvania Railroad Co. v. Buckley, 210 Fed. 268, 127 C. C. A. 86.
These cases are readily distinguished from the case of Gleeson v. Virginia Midland Railroad Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458, relied upon by plaintiffs. In that case the train was derailed by a landslide, which raised a presumption of negligence, which defendant did not overcome by showing that rain caused the landslide and consequent derailment. This landslide was not unavoidable, and could not be classed as an act of God, for the road could have been so constructed as to avoid the landslide. Whether or not due care in the construction of the railroad would have taken into account possible landslides and provided against them were questions for the jury.
We think the undisputed evidence shows in the case before us that the defendant discharged its full duty to the plaintiffs and exculpated itself from the presumption of negligence rais.ed by the accident. It was therefore the duty of the learned trial judge to direct a verdict, and the judgment is affirmed.