ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Mrs. Elizabeth Frances FUTCH, Appellee, 263 F.2d 701

TUTTLE, Circuit Judge. This is an appeal from a judgment based on a jury verdict in favor of a mother for the death of her 18 month old son on the track of the defendant railroad. The child was struck in the vicinity of a path leading from its parents’ house down to the tracks. The question, preserved for review by defendant’s motions to dismiss, for a directed verdict, for judgment n.o.v. and for new trial, is whether there was any substantial evidence of negligence on the part of appellant or its employees which proximately caused the death of the child.

The family lived in a railroad-owned house across the track from the public depot of Junction City, Georgia, a town of 259 people according to the 1950 census. The mother had gone shopping for groceries, leaving three small children in the father’s care. The father was repairing a puncture in an automobile tire. He heard the train blow for a public road crossing near the depot and then discovered that the baby was missing: “Q. And where was Randy right at that time? A. Well, when the train blowed I looked around and didn’t see him, and I run to the front door and he was in the middle of the track. “Q.

Go ahead and tell us what you did? A. And, er, so er, he turned and come out and got across the rail. I run as hard as I could and I got near about in, I would say, eight or ten feet of him before the train struck him.” It is not seriously argued by appellee that either the fireman or engineer was negligent as to anything they did or failed to do after seeing that there was a child on the tracks. After the brakes were already in emergency, the engineer saw the child astride the right hand rail. The child was knocked some sixty feet and his body came to rest on the right hand side of the track.

The engineer upon receiving the alarm threw the brakes in emergency and testified that he made a remarkable stop. Even that, however, consumed a distance of forty car lengths, or 1600 to 1800 feet. The brakes had been applied only about 350 feet from the child. According to the engineer and the fireman, the speed of the train before braking was forty-five miles per hour. Even if the train had been traveling only fifteen miles per hour, the evidence showed that it could not have been stopped before reaching the child.

The district court charged the jury in part as follows: “* * * where persons habitually, with the knowledge and without the disapproval of the railroad company, use a private passage way for the purpose of crossing the tracks of the company at a given point, the employees of the company in charge of one of its trains who are aware of the custom are bound on given occasions to anticipate that persons may be upon the tracks at this point, and they are under a duty to take such precautions to prevent injury to such persons as would meet the requirements of ordinary care and diligence.” After having deliberated for two hours, the jury returned to the box and its foreman stated to the court: “ * * * The jury is not clear in regard to your charge of the law about the path in front of the

section foreman’s house being used by the public. That seems to be the trouble right now.” The court then repeated a portion of its charge, including the part heretofore quoted. Thereafter the jury reached its-verdict in favor of the plaintiff. The part of the court’s charge-which has been quoted is in the language of the Supreme Court of Georgia in Western & Atlantic R. Co. v. Michael, 1932, 175 Ga. 1, 165 S.E. 37, 41, quoted in Bridges v. Southern Railway Co., 1957, 96 Ga.App. 497, 100 S.E.2d 619, 620.

The rule thus stated imposes a duty to anticipate persons upon the track only upon “the employees of the company in charge of one of its trains, who are aware of the custom.” (Emphasis supplied.) That point was emphasized in Bridges v.

Southern Railway Co., supra, 100 S.E.2d at page 621, as follows: “Where the agents of a railroad engaged in the operation of its train have no knowledge of a crossing which is not a public crossing, or a private crossing established by law, or a crossing which the railroad keeps up or helps to keep up, but which is commonly used by the public without the express disapproval of the railroad, the only duty owed a trespasser upon or near the tracks at such point is not to wilfully or wantonly injure him after his presence is actually discovered. Vaughn v. Louisville & N. R.

Co., 53 Ga.App. 135(4), 185 S.E. 145.” The parties stipulated to the correctness of a diagram that was introduced by agreement. This diagram, or plat, showed the spot where the child was hit as being some distance from the point at which the path, if projected, would cross the track. It was at least 12 to 15 feet down track from such point. The significance of this fact is that the plaintiff’s house, in which the child lived, fronted for some fifty feet along the railroad right-of-way. The yard was not separated from the track by any steep slope, hedge, fence or ditch.

The photographs clearly show that easy access could be had to the tracks from any part of the yard. There is no evidence that the child entered the railroad right-of-way at the path rather than at some other point where the yard abutted the track. This situation was in all respects similar to any house abutting the railroad tracks where either child or grown person could step from his front yard onto the track at will. The only difference here is that there was this private path. This path is seen by the plat and dimly on one photograph to lead into appellee’s yard and directly to the front porch of the house.

It was thus wholly on private property and was no extension of a public way. Anyone crossing the tracks to or from the path would necessarily leave or enter it in appellee’s front yard immediately at her front steps. Inasmuch as the locomotive blew the required crossing whistle for the little community’s road crossing, it is not contended that the railroad was negligent in respect of any obligation of care it owed to persons who might have been on the tracks at or about the station or at or about the crossing.

It is only the duty of the railroad arising from the likelihood of persons using this private path that the trial court felt warranted sending the case to the jury. The testimony on the use of the path was vague as to the frequency of use during the time when notice must be brought home to the railroad company and the operators of the trains.

Although one witness testified that in the forty-two years he had lived in the community he had used it “thousands of times,” (if he used it once every other day for thirty years this would amount to five thousand times) he said only that he had used it “on several occasions” in the “last three or four years.” The plaintiff introduced no direct evidence of knowledge of the private crossing by any member of the railroad crew in charge of the operation of the train. There was evidence given by several local residents in addition to the

section foreman’s family that they had crossed the tracks at this place with some frequency. There was no witness who ever testified to being on or about the path or crossing or seeing others there when any train or locomotive of the appellant railroad was passing. There is thus no proof that what usage occurred was ever brought to the attention of the operators of this or any other train. The crew all testified they had no knowledge that anyone used this path as part of a crossing. The engineer, fireman and brakeman all testified they had never seen any person on or about the path.

The engineer, who had been on the run off and on for 12 years, said of the path : “I didn’t know whether it was a path or not. I had noticed a little streak down there, but I hadn’t noticed that it was a path. I hadn’t never seen anyone going back and forth on it.” Of course, where there is proof of circumstances which would permit an inference that the operating crew of the train knew of habitual use of a passageway or crossing, and where there was no categorical undisputed testimony to the contrary a jury question may arise as to whether the operator did in fact know of the habitual crossing.

Such cases are Macon & Birmingham Railway Co. v. Parker, 127 Ga. 471, 56 S.E. 616, and Shaw v. Georgia R. R., 127 Ga. 8, 55 S.E. 960. Such was not the case here.

Assuming that the testimony of use here established such a “habitual” use or “common” use as is referred to in the Western & Atlantic and the Shaw cases, supra, and that such use had come to the knowledge of the railroad company, as was the state of the proof in the Shaw case, there is no evidence that any use was ever observed by, or in any way brought to, the attention of the crew of this train, so as to draw in issue their categorical statements that they knew of no such use. There was, therefore, no jury issue on this essential point.

The Georgia law, even with the heavy duty of care it places on a railroad, as expressed in the court’s charge, still requires that knowledge of the public use of a private crossing by the operators of the train exist before the duty to anticipate the peril arises. Bridges v. Southern Railway Co. supra.

There being no evidence from which the jury could have found that the “employees of the company in charge of * * * its train” had any knowledge that persons “habitually used [the] private passageway for the purpose of crossing the tracks,” the defendant’s motion for directed verdict at the close of the case should have been granted. The judgment is reversed and judgment rendered for the defendant. . The father was a

section foreman for the appellant railroad. . The locomotive crossed the public road 322 feet before striking the child. . The fireman’s story of what happened follows: “A. Well, I was looking out the side window to watch for the train order board. They have a board there they call the train order board. The sun was shining bright and I was looking out for this train order board, and I saw it in the clear position. I called the position of the board to the crew inside, that we had a clear board, there was something in that area that caught my attention.

Well, the sun being bright and everything, I couldn’t tell just what it might be. I come back on the inside of the locomotive and stood up and got into the shaded area where I could look thru the glass in the door. I still couldn’t make out just exactly what it was, and all of a sudden this, er, a child, or at least the object raised up. Now whether it was sitting down or whether it was just bending over I couldn’t say, but it raised up and I recognized it as a child. I yelled to the engineer to big hole it. That means to put the brakes in emergency, and he put the brakes in emergency immediately.

Well, I tried to open the door and the speed that we were going and the force of the wind as I opened the door blew my cap off.

Well, that distracted my attention enough that the door slammed shut and it come back past the point where the latch would go into the hasp there, or at least I imagine you would call it a hasp, you know, but anyhow it was forced beyond that point, and I had to bump the door several times before I could force it open, and I tried to get out to the front of the engine there, thinking that I might could shove the child off of the track if I could get out to the front of the locomotive, but this child was at the left hand rail whenever I first saw it. It crossed over to the right hand rail.

I was thinking maybe I could get out there and maybe shove it off, and in the process I only made it about half way down whenever the child went out of my sight on the right hand side. * * * * * “A. At the timo I first saw it we were rounding the curve and the sun was back off to the left. I was trying to shade my eyes so I could see, but then as we rounded the curve the sun was shining completely, almost directly, straight. We was headed almost directly right straight into the sun. ***** “A.

After — when—after the child was spotted, the child crossed over to the right hand rail, stepped across the rail, by putting both hands down on the rail and stepping over one foot at the time. ***** “Q. Well, there was another hazard too, and that was the bright sun shining in the engineer’s eyes, in your eyes too, wasn’t it? A. Yes, sir. ***** “A. Well, at the time I saw it now, I couldn’t say whether it was sitting down or bending over, and I didn’t actually recognize it as a child until it straightened up, stood up. “Q. And that, yon say, was only a few seconds? A. That was only a few seconds.

I yelled ‘big hole it, there’s a child on the track,’ and then it started moving from the left hand rail to the right hand rail. To cross over this rail it put both hands on the rail, put one foot over and it looked back over its shoulder, and then put the other foot over, and all this time I was — I had my eye on this child, trying to get out to the front. I made it half way down-tbere and the child went out of my sight on the right hand side of the locomotive. I never did see it straighten up at all.” . The inconsistent testimony of Hr.

Futch as to the place where the child was hit (he testified at one place that the plat was correct, at another that he would say the child was “right in” the path; in identifying photographs, he placed the spot in two still somewhat different places) cannot be considered by the jury as fixing the point of the accident somewhere other than agreed to by the parties themselves. The agreement of counsel in open court that the plat was correct resolves this issue. . As an example of a less heavy burden of care as required by the law of Pennsylvania, see Sabo v.

Reading Co., 3 Cir., 244 F.2d 692, at page 694, where it is said: “A railroad has the paramount right of way and is entitled to * * * act upon the presumption that, there will be no trespassers on the tracks. * * * To hold otherwise would defeat the social and economic utility of railroads. In the present case, the train would have had to be traveling no more than ten miles an hour to have stopped within the distance of visibility, thus completely defeating its purpose as a transportation medium.”