Baltimore & O. R. Co. v. Postom ( 1949 )

HOLTZOFF, District Judge.

This is an appeal by the defendant from a judgment for the plaintiff in an action to recover damages for wrongful death, which resulted from a grade crossing collision between a railroad train and an automobile. The question presented is whether the defendant’s motion for a directed verdict was properly denied. This problem, in turn, may be divided into two parts: first, whether there was substantial evidence that appellant’s negligence was a cause of the collision; and, second, whether the deceased was guilty of contributory negligence as a matter of law.

Isabell Postom, the deceased, and her sister, Ordelia Lanford, were passengers in an automobile operated by one Osborne McKinney. The deceased sat in the front seat next to the driver, while her sister occupied the rear seat of the two-door sedan. The car was proceeding from Washington to a small suburban settlement in Maryland, lying east of the tracks of the Baltimore and Ohio Railroad. On the way, McKinney-attempted to drive the automobile across the railroad tracks at a point in Maryland known as Millrace Crossing. While going over the intersection, the automobile became lodged on the tracks with the left wheels off the crossing and the left front wheel wedged down between the rails. A freight train was approaching from the right. McKinney and Ordelia Lanford managed to alight through the left door of the automobile and escape the impending catastrophe. The deceased was killed in the ensuing impact between the train and the automobile.

The appellant made a motion for a directed verdict, on the ground that there was no substantial evidence of negligence, and further, on the ground that the deceased was’guilty of contributory negligence as a matter of law in failing to leave the automobile in time to avoid injury. The motion was denied by the trial court. The-case was submitted to the jury on the issues, whether the crossing was negligently maintained in an unsafe condition, and, if so,, whether the defective condition of the crossing was the proximate cause of the death. In addition, the question of contributory negligence was likewise left to the jury.-

Before analyzing the evidence on these two aspects of the case, it seems useful to restate the pertinent principles of law by which these matters are to be governed. To justify the submission of a case to the jury and to permit its verdict to stand, it is necessary that there be substantial evidence to support either conclusion that may be reached. A mere scintilla of evidence is not sufficient. Substantial evidence is evidence of such quality and weight as would-be sufficient to justify a reasonable man in drawing the inference of fact that is sought to be sustained.¹ If substantial evidence is presented, which, if credited, would sustain, a verdict in favor of one party or the other,, the case should be left to the jury. It is not for the court to weigh the evidence on both: sides of a contested issue. To do so is the-function of the jury. If the evidence is-conflicting, the conflict must be resolved by the jury. If divergent inferences may be drawn from the evidence, the selection of' the proper deduction is also a function of' the jury. If the evidence is contradictory,, the process of reasoning followed by the-jury may comprise two steps: first, to determine which account of the incident to. accept; and second, to decide which of two. or more possible inferences should be drawn from the version so adopted. From-the mere fact that the evidence permits two or more possible inferences, it does not necessarily follow that the evidence is not substantial and is not sufficient to sustain the jury’s finding. To be substantial, the evidence need not point entirely in one direction. The trial court on a motion for a directed verdict must view the evidence from the standpoint most favorable to the adverse party. It must assume that the jury may resolve the conflict against the moving party, and from the facts as found draw the inference most favorable to his opponent. If there is substantial evidence from which such deductions can be made, the motion must be denied, as the jury is clothed with the function and power of determining whether to make them. The Supreme Court has frequently formulated and reiterated these principles. A few quotations from its opinions will suffice:—“It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” Richmond & Danville R. Co. v. Powers, 149 U.S. 43, 45, 13 S.Ct. 748, 749, 37 L.Ed. 642. “ ‘Where the facts are in dispute, and the evidence in relation to them is that from which fair-minded men may draw different inferences’, the case should go to the jury.” Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 68, 63 S.Ct. 444, 451, 87 L.Ed. 610, 143 A.L.R. 967. “The very essence of its [i. e. jury’s] function is to select from among conflicting inferences and conclusions that which it considers most reasonable.” Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 412, 88 L.Ed. 520.²

True there are expressions in some cases to the effect that if the facts give equal support to each of two conflicting inferences, or are consistent with either of two hypotheses, neither may be deemed established.³ An analysis of such statements irresistibly leads to the conclusion that they •cannot be reconciled with the principles which have been adopted by a majority of .the decisions and which have just been summarized. These assertions do not represent the accepted view of the law. If they did, the court would have to determine in each case whether the evidence is capable of only one conclusion and unless it answered this question in the affirmative, the trial would terminate with a directed verdict. The court would then really be deciding questions of fact, subject to a subsequent veto on the part of the jury if the court submitted the issues to it.

McKinney claimed that the crossing was in bad shape; that it was composed, in part at least, of soft gravel, and that this condition caused the left front wheel of his automobile to slide off the crossing and on to the ties and ballast, from which he was unable to extricate the car in time to avoid the disaster. The appellant denied that the condition of the crossing was unsafe and claimed that it was a fair inference that McKinney missed the crossing and drove the left wheels of the automobile on to the rails.

An employee of the railroad company testified that the crossing had been repaired about one month prior to the accident. No records of repairs were produced and apparently none were maintained. This witness further stated that crossings constructed of amesite, as this one was, are hard surfaced and last a couple of years. Yet photographs taken by representatives of the railroad company three days after the accident, seem to indicate that the crossing was not in good condition: it appeared to have several deep ruts and marked depressions, some of which were filled with loose stones. On this point the appellant’s witness seems to be impaled on the horns of a dilemma: either he was mistaken in his recollection that the crossing had been repaired only a month prior to the accident; or else he had grossly exaggerated ideas as to the lasting qualities of a crossing constructed of amesite. It is difficult to perceive how the jury could have reached any conclusion on this aspect of the case, other than that the railroad was negligent in the manner in which it maintained the crossing.

The seriously controverted issue was whether the defective nature of the crossing was a proximate cause of the accident. There is no evidence tending to show that the driver of the automobile was proceeding at an excessive rate of speed, or was otherwise negligent. The record indicates that he was apparently an uneducated, illiterate man, with a very limited vocabulary and a circumscribed power of expression. It may be fairly inferred from his explanation of the accident that he claimed that the automobile either slid off the front portion of the crossing, or possibly struck a rut in the crossing and jumped slightly to the left, thereby causing the left front wheel to become wedged between the tracks.

The appellant claims that the driver’s explanation was physically impossible. This contention seems extreme. It was for the jury to determine whether to credit the testimony adduced in appellant’s behalf. The jury evidently believed the driver’s story, as it had a right to do. The appellánt’s contention that what actually happened was that the driver for some reason or other missed the intersection and drove onto the rails, is pure conjecture and sheer speculation. Assuming it to be one of several possible inferences from the physical facts, nevertheless, it was the function of the jury to determine what deduction to draw. The jury rejected the appellee’s theory and accepted the appellant’s story. It had a right to do so.

It is further claimed that the deceased was guilty of contributory negligence as a matter of law in failing to leave the stalled automobile promptly and make her escape, as was done by the driver and the other passenger. It must be observed that they managed to leave the car from the left immediately prior to the crash. The deceased was sitting on the right and, until the driver and the other passenger had successively used the only door on the left, could leave only from the right side. The train was approaching from the right.

The law is clear that in a moment of unexpected emergency and imminent danger, a person is not held to the use of the best possible judgment, or a high degree of prudence that one may be assumed to exercise in an interval of calm, when there is opportunity and time for reflection and deliberation.⁴ What actually happened to the deceased immediately before the crash is unknown. She may have attempted to make her escape and may have found herself caught between the train and the automobile. She may have been petrified with fear. She may have misjudged the speed of the oncoming train. She may have encountered difficulty in opening the door. Any one of a number of things may have prevented her from escaping death. A person in her position is not required to think clearly and correctly and make the best possible choice of the course to pursue. The law makes allowances for the fact that when confronted with a sudden emergéncy •and an immediate peril, some people do not think rapidly or clearly, and failure to do so, does not constitute negligence as a matter of law. The question whether the deceased was guilty of contributory negligence was properly left to the jury, particularly as the burden of proof on this issue was on the appellant.⁵

We are of the opinion that the issues of negligence and contributory negligence were correctly submitted to the jury and that the verdict is sustained by substantial evidence.

1 Kane v. Northern Central R. Co., 128 U.S. 91, 9 S.Ct. 16, 32 L.Ed. 339; Jones v. East Tennessee, V. & G. R. Co., 128 U.S. 443, 9 S.Ct. 118, 32 L.Ed. 478; Washington & Georgetown R. Co. v. McDade, 135 U.S. 554, 570 et seq., 10 S.Ct. 1044, 34 L.Ed. 235; Gunning v. Cooley, 281 U.S. 90, 95, 50 S.Ct 231, 74 L.Ed. 720; Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126; Tiller v. Atlantic Coast Line R. Co., 318 U.S. 54, 67-68, 63 S.Ct. 444, 87 L.Ed. 610, 143 A.L.R. 967; Bailey v. Central Vermont Ry., 319 U.S. 350, 353-354, 63. S.Ct. 1062, 87 L.Ed. 1444; Tennant v. Peoria & P. U. R. Co., 321 U.S. 29, 35, 64 S.Ct. 409, 88 L.Ed. 520; Wilkerson v. McCarthy, 336 U.S. 53, 62, 69 S.Ct. 413; Smith v. United States, 61 App.D.C. 344, 62 F.2d 1061; Bell v. Brown, 76 U.S. App.D.C. 5, 128 F.2d 317; Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 143 F.2d 142; Curley v. United States, 81 U.S.App.D.C. 389, 392 et seq, 160 FI2d 229.

2 “Where uncertainty as to the existence of negligence arises from a conflict in the testimony or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them, the question is not one of law but of fact to be settled by the jury.” Gunning v. Cooley, 281 U.S. 90, 94, 50 S.Ct. 231, 233, 74 L.Ed. 720. In Lavender v. Kurn. 327 U.S. 645, 66 S.Ct. 740, 90 L.Ed. 916, the question at issue was whether the plaintiff’s decedent had been murdered or was hilled as a result of the defendant’s negligence. The Supreme Court, 327 U.S. 645, at page 652, 66 S.Ct. 740, 90 L.Ed. 916, pointed out that there was evidence from which either inference might reasonably be made, but since the jury made the inference that the deceased met his death as a result of defendant’s negligence, it would be an undue invasion of the jury’s function for an appellate court to arrive at the opposite conclusion. Among many other eases supporting this doctrine are, Tiller v. Atlantic Coast Line R. Co., supra, n. 1; Bailey v. Central Vermont Ry., supra, n. 1; Tennant v. Peoria & P. U. R. Co., supra, n. 1; Wilkerson v. McCarthy, supra, n. 1; Curley v. United States, supra, n. 1; Hart v. United States, 3 Cir., 84 F. 799, 804.

3 E.g. see Pennsylvania R. Co. v. Chamberlain, 288 U.S. 333, 339, 53 S.Ct. 391, 77 L.Ed. 819, and Ewing v. Goode, C.C., 78 F. 442, 444.

4 Ward v. District of Columbia, 24 App.D.C. 524; Jennings v. Philadelphia, B. & W. R. Co., 29 App.D.C. 219, 10 Ann.Cas. 761; Burhans v. Burhans, 159 Md. 370, 150 A. 795.

5 Burden of proof on the issue of contributory negligence is a matter of substantive law and, hence, is governed by the local law of the forum. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487; Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477; Palmer v. Hoffman, 318 U.S. 109, 116 et seq., 63 S.Ct. 477, 87 L.Ed. 645, 144 A.L.R. 719. In the District of Columbia, the right to recover damages for negligence is governed by the law of the place where the injury occurred, in this case, Maryland. Paxson v. Davis, 62 App.D.C. 146, 148, 65 F.2d 492; Tobin v. Pennsylvania R. Co., 69 App.D.C. 262, 263, 100 F.2d 435; Giddings v. Zellan, 82 U.S.App.D.C. 92, 160 F.2d 585. In Maryland, the burden of proof on the issue of contributory negligence is on the defendant. Hopper, McGaw & Co. v. Kelly, 145 Md. 161, 170, 125 A. 779; Taxicab Co. v. Ottenritter, 151 Md. 525, 534-535, 135 A. 587; Potomac Edison Co. v. State, 168 Md. 156, 169, 177 A. 163.