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MILLER v. PENNSYLVANIA R.R. CO.

April 30, 1958

Wilfred L. MILLER et al., Plaintiffs,
v.
PENNSYLVANIA RAILROAD CO., Defendant



The opinion of the court was delivered by: HOLTZOFF

This is an action to recover damages caused to a combined trailer, bulldozer and earth scraper, as a result of their being struck by the defendant's train at a railroad crossing on which this machinery was stalled. After a trial on the merits, the jury rendered a verdict in favor of the plaintiff Miller in the sum of $ 12,350; and in favor of the intervenor plaintiff, Alban Tractor Company, which had a financial interest in the equipment, for the sum of $ 7,250. The case is now before the Court on the defendant's motion for judgment notwithstanding the verdict, or in the alternative, for a new trial.

The trial took place before Judge Kirkland and a jury. Unfortunately he departed this life between the time of the trial and the hearing of the motion. The Chief Judge of this Court then assigned the matter to this writer in accordance with Rule 63 of the Federal Rules of Civil Procedure, 28 U.S.C.A., which reads as follows:

 'Rule 63. Disability of a Judge. If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.' *fn1"

 Manifestly, the judge to whom such a proceeding is assigned because of the death of the trial judge, finds himself in a position of consideration delicacy, as he has to perform the somewhat invidious function of reviewing the rulings of a judge of co-ordinate jurisdiction. Moreover, under some circumstances he may be handicapped by the fact that he did not hear the evidence and did not see the witnesses and is not in touch with the atmosphere surrounding the trial. He must needs rely solely on the transcript of the proceedings. Nevertheless, the task cannot be avoided and the duty must be fulfilled if practicable.

 It is well established that if the trial judge dies after the jury returns a verdict but before a motion for judgment notwithstanding the verdict or a motion for a new trial is heard or decided, another judge may pass upon such applications. The latter then becomes vested with the same broad discretion to grant or deny such motions as was the trial judge. *fn2" An exception arises only if the successor judge finds that he cannot satisfactorily perform such a function by reason of the fact that he did not preside at the trial, or for some other reason. No such unusual situation emerges in the case at bar. This case is not within the exception

 A consideration of this matter must start with the premise that rulings of the trial judge are presumed to be correct, and that the burden is on the defeated party to demonstrate the contrary. This doctrine governs appellate review. A fortiori it is applicable to post-trial motions made in the trial court.

 It is also necessary to bear in mind the necessity of undertaking the task in the spirit of what is known as the 'harmless error' rule, i.e., Rule 61 of the Federal Rules of Civil Procedure, which reads as follows:

 'Rule 61. Harmless Error. No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.'

 This rule is quoted and must be stressed because unfortunately its mandate, in fact its very existence, is frequently overlooked and at times even forgotten. It must not be permitted to wither and atrophy. It will not do to render purely lip service to this basic doctrine of modern administration of justice. We must not 'keep the word of promise to our ear, and break it to our hope'. Philosophically, rules of law are but a means to an end and not an end in themselves. Their objective is the achievement of substantial justice.

 It may be interesting to observe that a parallel principle exists in English procedure in connection with appellate review. It is found in Order 39, Rule 6, of the Rules of the Supreme Court, *fn3" and reads as follows:

 'A new trial shall not be granted on the ground of misdirection or of the improper admission or rejection of evidence, or because the verdict of the jury was not taken upon a question which the judge at the trial was not asked to leave to them, unless in the opinion of the Court of Appeal some substantial wrong or miscarriage has been thereby occasioned; * * *.' (Emphasis supplied.)

 The instant case has been tried twice. At the first trial, which was conducted by this writer, the Court directed a verdict in favor of the defendant at the close of the plaintiffs' case, on the ground that no negligence on the part of the defendant had been shown. The judgment was reversed by the Court of Appeals by a vote of two to one on the theory that the evidence adduced by the plaintiffs could have 'been found by the jury to have made out a case of negligence on the part of the Railroad * * * in the failure to bring the train to a stop when the peril of Miller was or should have been seen.' *fn4"

 The case was then retried before Judge Kirkland and a jury. In the light of the opinion of the Court of Appeals, the issues were submitted to the jury, which rendered a verdict for the plaintiffs as indicated. Obviously, the case is at present in a different posture than it was at the conclusion of the first trial, since the evidence for both sides has now been heard instead of only the evidence adduced in behalf of the plaintiffs. A reading of the transcript of the proceedings at the second trial indicates that there was no substantial conflict as to the salient facts. The disagreement between the parties was limited to the inferences to be drawn from the undisputed evidence and related largely to the steps that should have been taken under the circumstances by the various persons involved in the lamentable collision.

 The facts are as follows. The plaintiff Miller was a grading and excavating contractor. On the day in question he was moving his machinery, which consisted of what is colloquially known as a 'bulldozer', loaded on a motor-driven trailer, and an earth scraper attached to the latter. The equipment was long and heavy, its length being about 70 feet. The floor of the trailer reached lower and was closer to the ground than is true of ordinary motor vehicles. In the course of moving the equipment, the plaintiff slowly proceeded across the tracks of the Pennsylvania Railroad Company, the defendant in this action, at a grade crossing near Lanham, Maryland. The crossing was approached by a minor country road. Another route was available to the plaintiff, over a state highway, which would have afforded an opportunity to move the equipment safely over a viaduct instead of at grade. Nevertheless the plaintiff chose the former itinerary.

 As the equipment was progressing through the intersection and after it had partially cleared the tracks, the front of the trailer was impaled on a slight rise in the ground, due to the fact that the clearance between the floor of the trailer and the ground was unusually small. The engine stalled. The plaintiff and his helper made frantic and energetic efforts to start the engine and to force the equipment over the obstruction, but to no avail. The watchman, who guarded the crossing, was standing at his accustomed post near the tracks, holding a manual semaphore signal, which he employed to stop drivers of crossing vehicles or to wave them across when the intersection was clear, as conditions required. Apparently he was closely observing what was happening. About forty-five seconds elapsed. Such a period of time naturally can pass very rapidly, especially under the pressure of great stress and severe strain. Then a buzzer began to sound in the watchman's shack or booth, which was located near the track. It signalled the approach of a train from the north. The watchman immediately directed the plaintiff and his helper to leave the cab of the trailer. They promptly did so, and stood helplessly at the side of the railroad tracks. Almost instantaneously, after ordering the plaintiff and his helper to a safe place, the watchman started to run along the side of the tracks, at the same time unfurling a red flag which he held in his hand, and waving it, in the hope of signalling the train to stop.

 In the meantime, an express train rushing at the rate of 80 miles an hour, the authorized speed at that point, had rounded a curve located 3,190 feet north of the intersection which then first appeared in the line of vision of the locomotive engineer and the fireman. Each of them saw that there was some obstruction on the track. They assumed that a vehicle of some kind was moving over the intersection and would clear the crossing before the train reached it. A few more seconds passed, and then both the engineer and the fireman suddenly realized that what seemed to be a vehicle, or a structure of some kind on the track, was at a standstill. They apparently were startled and horrified. The engineer immediately pulled the emergency brake. All that this move accomplished, however, was to reduce the speed of the train by 10 or 15 miles an hour, by the time when it hit the plaintiffs' equipment with full force, smashing it into bits. The force of the impact caused the locomotive to leave the tracks and roll along. The train was derailed. The engine swayed back and forth. Fortunately it did not turn over but gradually came to a stop. Fortunately, too, the engineman managed to extinguish the fire in the engine. It was little short of a miracle that neither the engineer nor the fireman sustained any serious injuries. To the plaintiff the wreck was a tragedy. The catastrophe would have been immeasurably worse if there had been a loss of life.

 The plaintiff brought suit to recover damages to his equipment. The railroad counterclaimed for damages caused to its rolling stock. At the first trial, since a verdict was directed in favor of the defendant at the close of the plaintiffs' case, the railroad did not introduce any evidence in its behalf. Consequently the facts as to what transpired in the engine and as to what was done by the engineer and the fireman were not before the court. The testimony was confined to the events that took place at the intersection.

 At the first trial the plaintiffs predicated their charge that the defendant was guilty of negligence constituting the proximate cause of the collision, on three grounds. First, it was contended that the railroad company was guilty of negligence in failing to construct the crossing in a manner that would have rendered it absolutely level, and would have eliminated the slight rise on which the plaintiffs' apparatus became lodged. Second, it was claimed that when the plaintiffs' machinery was stalled, the watchman should have promptly returned to his shed, picked up a fuzee, which was part of the equipment with which he had been supplied, lighted the fuzee and thrown it on the tracks, thereby igniting a red flame as a signal to the train to stop. It was argued that such a signal would have been visible for a considerable distance. Third, it was urged that the engineer should have begun to slow down the train at the very moment when he first saw the obstruction and that if he had done so, the train could have been brought under control prior to the accident. The trial court overruled each of these contentions and held that a prima facie case of negligence had not been made out. It thereupon directed a verdict for the defendant. In that posture of the case, it was unnecessary to pass upon the defense of contributory negligence.

 The ruling of the trial court was supported by the decisions of the Second Circuit in Woodington v. Pennsylvania Railroad Co., 236 F.2d 760, and of the Third Circuit in McDonald v. Pennsylvania R. Co., 210 F.2d 524. Both of these cases arose out of the same accident, which was very similar to the one that occurred in the case at bar. A motor-powered crane was stalled on railroad tracks at a grade crossing and was struck by a train. Unfortunately, unlike the episode involved in the instant case, the railroad engineman was seriously injured and the fireman was killed. In the Woodington case, an action was instituted by the engineman against the owner of the crane and the railroad company to recover damages for personal injuries sustained by him. In the McDonald case, a similar suit was brought by the executrix of the fireman's estate to recover damages for wrongful death. The facts were parallel to those presented in the instant case. The engineman saw the crane before approaching the crossing, but assumed that it was moving. When he realized that it had stalled, he promptly applied the brakes, but was unable to stop the train before crashing into the heavy apparatus. In each instance, it was held that there was no negligence on the part of the railroad engineer, but that the owner of the crane was to blame in taking the risk of crossing railroad tracks at grade when another route through an underpass was available. In the McDonald case, Judge Bggs observed that, 'a man was killed by reason of a senseless accident caused by the indifference of the employees of a large contracting company, * * *' *fn5" Judge Clark in the Woodington case quoted these remarks with approval.

 In the case at bar, the Court of Appeals agreed with the trial court that the first ground of alleged negligence had not been established, namely, that the railroad had not been guilty of any negligence in the construction of the crossing. It was held that in this regard the railroad was only under a duty to construct and maintain the crossing in such a manner that it would be safe for the usual and ordinary vehicles. The Court of Appeals further ruled, however, that a prima facie case of negligence requiring the defendant to introduce its evidence had been made out as to the third claim, namely, that the railroad employees had been guilty of negligence in failing to take immediate steps to bring the train under control at the instant when the obstruction hove into view. In its opinion, the court did not discuss or cite the McDonald and Woodington cases, supra. Unfortunately, the Court of Appeals gave no indication of its views as to whether the second ground of alleged negligence, namely, the failure of the ...


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