so as to offset the centrifugal force brought into play as a train rounds the curve.
Although Mrs. Pomeroy left children surviving her, the only person claiming to have suffered pecuniary loss as a result of Mrs. Pomeroy's death is her husband, Mr. Pomeroy, the plaintiff. The life expectancy of both Mr. and Mrs. Pomeroy at the time of her death was a fraction over nine years. Mrs. Pomeroy owned the apartment building in which she and her husband had an apartment. She provided this dwelling for herself and Mr. Pomeroy, and used the income from the operation of the apartment building, amounting to about $ 200 a month, and the income from a farm, also owned by her, amounting to about $ 500 a year, for their joint maintenance. They had no other source of income. She kept house for her husband. After her death, this property was vested in her children.
In considering the motion for judgment n.o.v. the Court must construe the evidence most favorably to the plaintiff, and give him the full effect of every legistimate inforence therefrom.
On this basis, it would appear that Mrs. Pomeroy, feeling warm, entered the vestibule of the coach to get some fresh air; that the doors were open when she entered the vestibule; and that as the train passed around the curve, she was thrown through the open door by the operation of the train, notwithstanding the banking to offset the effect of centrifugal force.
But this did not justify submission of the case to the jury under the doctrine of res ipsa loquitur. There was no collision, derailment, defect in machinery, unusual lurch or jerk. The doors were accessible to all passengers and were easily opened. All the elements requisite for the application of the doctrine of res ipsa loquitur, therefore, were not present,
and accordingly I found the doctrine inapplicable and refused to submit the case to the jury on that basis with appropriate instructions in use in this jurisdiction.
There was thus left for determination only the question whether there was suffficient evidence of specific negligence for submission to the jury, which I shall now discuss. It is the duty of the railroad, if it provides vestibule cars, to see that they remain closed between stations,
and defendant would be negligent if it failed to exercise the highest degree of care to keep them closed at such times. If reasonable men might differ on this point, the case is one for the jury; otherwise it is the Court's duty to direct a verdict for defendant.
If the standard were reasonable care, or the exercise of ordinary prudence and foresight, I would conclude unhesitatingly that reasonable men could not differ that such care had been exercised on the factual basis here involved. But the highest degree of care presents a different and more difficult problem. It contemplates the exercise of all the skill, prudence, and foresight within reason, consistent with the practical operation of the railroad.
It is defined by the Court of Appeals, in Tobin v. Pennsylvania R.R. Co., 69 App.D.C. 262, 264, 100 F.2d 435, by quoting with approval merier v. Pennsylvania R. Co., 64 Pa. 225, as follows:
'The utmost care and vigilance is required on the part of the carrier. The rule does not require the utmost degree of care which the human mind is capable of imagining; but it does require that the highest degree of practical care and diligence should be adopted that is consistent with the mode of transportation adopted'.'
Of course I would not say, under this criterion, that it is the railroad's obligation to post an employee in every vestibule to see that the doors remain closed, but here there were only three inspections between Baltimore and Washington, one at the time of departure from Baltimore, one at Odenton, about halfway between these cities, and one at Seabrook, Maryland, about nine miles from the palce where Mrs. Pomeroy's body was found. To be sure, the inspection at Seabrook was only a few minutes before Mrs. Pomeroy departed from the coach, but the ticket collector had only three coaches assigned to his care. His only duty, according to the evidence, was to collect tickets, see to the safety of the passengers and equipment, and announce the arrival of trains at stations. At the time of this incident, the collection of tickets had been completed, and during the critical period here involved he had no duty other than to see to the safety of the passengers and equipment. He knew that it was not unusual to find the doors open between stations, and that the train was approaching its destination, with the inevitable movement and activity of passengers incident to preparation for arrival. Could reasonable men differ as to whether at that time he was sufficiently alert and vigilant to constitute the exercise of the highest degree of care and foresight? Could reasonable men differ as to whether, under these circumstances, with only three coaches to supervise, it was sufficient for him to content himself with the inspection at Seabrook until he announced arrival of the train at Washington? Could a reasonable man, under these circumstances, conclude that he failed to exercise the highest degree of care by not keeping closer scrutiny and check on these three coaches, by looking in on each of them, for example, during this critical period when passengers become restive? In other words, to use a colloquialism, was he sufficiently 'on the job' to bespeak the highest degree of care in the minds of all reasonable men? I thought not at the end of the trial, and on further reflection, have not changed my mind. Accordingly the motion for judgment n.o.v. will be denied.
I have considered the motion for a new trial, and find no sufficient basis for granting it.