John A. SNEAD, Administrator of The Estate of Kermit Norma Elswick, Appellant, v. The NEW YORK CENTRAL RAILROAD COMPANY, a Corporation, Appellee, 216 F.2d 169

PARKER, Chief Judge. This is an appeal by plaintiff from a judgment for defendant non obstante veredicto in an action to recover damages on account of wrongful death. Decedent was killed when an automobile in which she was riding skidded from a mountain road in West Virginia and after falling down a steep hillside landed on the railroad track of defendant where it was struck by one of defendant’s freight trains. Plaintiff contended that defendant was guilty of negligence in not stopping the train before it struck the automobile and that this negligence was the cause of decedent’s death.

The case was heard before a jury which found a verdict for plaintiff in the sum of $7,500. When the verdict was returned the defendant moved that the verdict be set aside and a new trial granted on grounds to be later assigned. The trial judge thereupon announced that he was convinced that the verdict was erroneous and that he would set it aside and enter a directed verdict for defendant. He stated that he was satisfied that the decedent was killed as a result of the falling of the car and not of its being struck by the train and that he did not think that negligence in the operation of the train had been shown.

The question-presented by the appeal is whether there was sufficient evidence that decedent’s death was due to the negligence of defendant to take the case to the jury. We think that there was. On the question of defendant’s negligence, there was evidence tending to show that the automobile was upon the tracks at a point where it could be seen for a distance of twelve hundred feet or more from the direction from which defendant’s train was approaching, that the train was moving very slowly, just having left a station, and that it was going up a slight grade.

The speed was estimated at from ten to fifteen miles per hour and the speed limit on that part of the track was shown to be not exceeding fifteen miles per hour. Caroline Elswick, who was riding with her husband and the decedent in the automobile, got out of it in some way, although she does not remember how, and ran 400 feet up the track towards the approaching train waving her arms and signalling frantically for it to stop. Other persons across the river from the scene of the accident also attempted to signal the train and pointed in the direction of the automobile on the tracks.

The fireman saw the signals given by these persons and both he and the engineer saw Mrs. Elswick running up the track and signalling to them. Mrs. Elswick testified that the train sounded its whistle as it rounded a curve and came in view of the wreck 1250 feet distant. Defendant contends that this signal was given when the train was pulling out of the station at Swiss; but it was for the jury, and not the court, to resolve this conflict in the evidence and say what conclusion should be drawn from it. Mrs.

Elswick further testified that after running 400 feet up the track and finding that she could not stop the train she ran back to the car and had reached it before it was struck and that the speed of the train was not decreased in the meantime. There was testimony, furthermore, that even after the engineer discovered that there was danger ahead he did not apply the emergency brake immediately but first used the service brake which is used at station stops. There was further evidence from which it might properly have been concluded that the emergency brakes were not applied as promptly as they should have been.

As the front of the train went only a few feet beyond the car, prompt application of the emergency brakes might have avoided the collision, and it was for the jury to say whether due care was exercised in this regard. If plaintiff’s version of the evidence be accepted, there is no adequate explanation as to why the train, moving as slowly as it was, could not in the exercise of reasonable care have been stopped before striking the car after those in charge had been alerted to the fact that there was danger ahead.

At all events, it was for the jury to say, in the light of this evidence, whether due care was exercised. Even if it be assumed that defendant owed no greater duty to plaintiff than to an ordinary trespasser, the jury might reasonably have found from the evidence that those in charge of the train did not exercise due care after they had been alerted to the fact that they were approaching a situation fraught with danger. See Washington and Old Dominion R. R. v.

Taylor, 188 Va. 458, 50 S.E.2d 415, 419, where failure to exercise due care to avoid injury to a trespasser after being alerted that there was danger by signals very much like those in evidence here was held a question for the jury. The question as to whether the death of decedent was the result of the falling of the car on the track or of its being struck by the train was even more clearly for the jury.

There was evidence on the part of plaintiff that the car backed slowly down the hill, being impeded by brush and small trees, and that its course was stayed for a brief interval by a tree at the bottom of the hill just before it slid over the edge of the cut and dropped to the track below. There was evidence that the car came down on the track rear end foremost, that it was not damaged appreciably as a result of the fall and that its occupants were not seriously hurt. Certainly Mrs. Elswick was able to get out of the car and run down the railroad track and her husband Was not killed but testified at the trial.

Mrs. Elswick testified that decedent was not bleeding and was not apparently hurt when seen immediately after the car landed on the tracks but was alive and praying. The train smashed in the front of the car, ripped off its top and crushed it against the foot of a rock wall. There was evidence from which the jury could reasonably have found that decedent’s death resulted from this collision.

There was evidence in contradiction of this, but the contention, strenuously pressed upon us, that decedent was thrown through the windshield when the car fell on the tracks is purely speculative and is contradicted by the direct testimony of both Mrs.

Elswick and her husband. “It is well settled.that on a motion for a directed verdict or on motion for judgment n. o. v. based on such motion, the evidence must be considered in the light most favorable to the party against whom the directed verdict or the judgment n. o. v. is asked, that any conflict in evidence must be resolved in his favor and that every conclusion or inference that can be legitimately drawn therefrom in his behalf must be drawn.” Burcham v. J. P. Stevens & Co., 4 Cir., 209 F.2d 35, 37.

The rule differs from that applicable on motions for new trial, where the judge may and should set aside the verdict and grant a new trial where the verdict is contrary to the weight of the evidence, or in his opinion is based upon evidence that is false or where he thinks such action necessary to prevent a miscarriage of justice. We pointed out the distinction in Garrison v. United States, 4 Cir., 62 F.2d 41, 42, from which we quoted in the later cases of Roedegir v. Phillips, 4 Cir., 85 F.2d 995, 996, and Aetna Casualty & Surety Co. v.

Yeatts, 4 Cir., 122 F.2d 350, 354, as follows: “ ‘Where there is substantial evidence in support of plaintiff’s ease, the judge may not direct a verdict against him, even though he may not believe his evidence or may think that the weight of the evidence is on the other side; for, under the constitutional guaranty of trial by jury, it is for the jury to weigh the evidence and pass upon its credibility.

He may, however, set aside a verdict supported by substantial evidence where in his opinion it is contrary to the clear weight of the evidence, or is based upon evidence which is false; for, even though the evidence be sufficient to preclude the direction of a verdict, it is still his duty to exercise his power over the proceedings before him to prevent a miscarriage of justice. See Felton v. Spiro, 6 Cir., 78 F. 576.

Verdict can be directed only where there is no substantial evidence to support recovery by the party against whom it is directed or where the evidence is all against him or so overwhelmingly so as to leave no room to doubt what the fact is. Gunning v. Cooley, 281 U.S. 90, 50 S.Ct. 231, 74 L.Ed. 720.

Verdict may be set aside and new trial granted, when the verdict is contrary to the clear weight of the evidence, or whenever in the exercise of a sound discretion the trial judge thinks this action necessary to prevent a miscarriage of justice.’ ” For the reasons stated, the judgment n. o. v. must be set aside; but because the judge, in entering the judgment, indicated that in .so doing he was activated by reasons which would have justified him in entering, an order setting aside the verdict and granting a new trial, we think that the case should be remanded to him with power to enter such order if he thinks proper, since we are without power to enter it ourselves.

It is true that the judge denied motion for new trial in connection with entering the judgment n. o. v., but the statement in the order for entry of judgment that such motion was without merit shows clearly that this had reference to a written motion filed after verdict asking a new trial on the ground of an inquiry made by one of the jurors. If the judge is of opinion that the verdict of the jury was against the weight of the evidence or based on evidence that was false, he should set it aside and grant a new trial, even though direction of a verdict or judgment n. o. v. was not warranted.

The judgment n. o. v. will accordingly be set aside and the case will be remanded with direction that the judge who tried it pass upon the motion for a new trial as above indicated and that such further proceedings be had in the case as may be appropriate in the premises. Reversed and remanded with directions. . That decedent having been thrown upon defendant’s track involuntarily was not an ordinary trespasser, certainly not a trespasser in the sense in which the term is ordinarily used, see A.L.I. Restatement of Law of Torts, vol. 1, p. 361; 52 Am.Jur. p. 840; Feiges v.

Racine Dry Goods Co., 231 Wis. 270, 285 N.W. 799, 801, 122 A.L.R. 272, 275.