Malisse BROWN, Appellant, v. SEABOARD COASTLINE RAILROAD, Successor to Atlantic Coastline Railroad Company, Appellee, 405 F.2d 601

PER CURIAM: This diversity action was brought by Malisse Brown, appellant, against Seaboard Coastline Railroad, appellee, for damages arising out of a railroad crossing collision occurring at the Tenth Street crossing in the City of Cairo, Georgia. At the close of the presentation of evidence by petitioner, the District Court granted a motion for a directed verdict in favor of Seaboard, and it is from the granting of this motion that the petitioner alleges error. After a perusal of the record, under the Georgia law, applying Erie, we affirm.

There was no evidence presented at the trial of any negligence on the part of the railroad. The only two witnesses to testify were Miss Brown and Seaboard’s engineer, called as an adverse witness under Rule 43(b), Federal Rules of Civil Procedure. Miss Brown did not remember any of the circumstances concerning the collision except that some months earlier the Tenth Street crossing was defective, and caused her to lose the muffler on this same vehicle involved in this collision.

The engineer for Seaboard testified that he saw the Brown vehicle on the crossing when his locomotive was some 400 feet east of the crossing, at which time he applied his brakes, but that when the Brown vehicle moved off the tracks and cleared the crossing by 7 or 8 feet, he released his brakes. There is no evidence in the record as to how the Brown vehicle got back on the crossing and was struck.

Under the undisputed evidence in the record as to the collision transpiring after the Brown vehicle had cleared the crossing by some 7 to 8 feet, the attempt of the claimant to assert negligence in maintaining the crossing and in failing to keep a proper lookout could not, under the facts in the case at hand have been the proximate cause of Miss Brown’s damages. Neither could the last clear chance doctrine have been applicable in the ease.

Plaintiff attempts to invoke Georgia Code § 94-1108 which, in substance, is a presumption of evidence that the proof of injury by a railroad locomotive or cars is negligence or want of care on the part of the railroad company. However, under Georgia law, when any evidence is produced showing that the railroad company was not negligent, the presumption vanishes. Also, when a claimant particularizes various acts of negligence, such as the defective crossing, the presumption vanishes. Under the cases of Central of Georgia Railroad Company v.

Hester, 94 Ga.App. 226, 94 S.E.2d 124, and Atlantic Coastline Railroad Company v. Sapp, 248 F.2d 889 (5 Cir., 1957), the claimant lost her presumption and the case proceeded with the burden of proof upon her to prove her case by a preponderance of the evidence, the same as a case against a non-railroad defendant. The test to be applied in diversity cases to determine the sufficiency of the evidence for submission of the case to a jury is a matter of federal law. Equitable Life Assurance Society of United States v. Fry, 5 Cir., 1967, 386 F.2d 239, 245.

Here no evidence was offered as to any act of negligence on behalf of the railroad company which might have proximately caused appellant’s injuries. The engineer testified positively as to facts which exonerated the railroad from negligence. The sum of the record is that there was no direct evidence to take the case to the jury. There were no facts from which an inference might have been drawn to take the case to the jury. There was, therefore, no evidentiary basis for submission of the case to the jury. Affirmed. . Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188. . Ga.Code Ann. § 94-503.

Upkeep and repair of crossings; bridges, embankments, and excavations. — All railroad companies shall keep in good order, at their expense, the public roads or private ways established pursuant to law, where crossed by their several roads, and build suitable bridges and make proper excavations or embankments, according to the spirit of the road laws. . Ga.Code Ann. § 94-507.

Tolling bell in cities, etc.; lookout; observance of ordinances. — Within the corporate limits of cities, towns and villages the said railroad company shall not be required either to erect the blowpost hereinbefore provided for or to blow the whistle of its locomotives in approaching the crossing or public roads in said corporate limits, but in lieu thereof the engineer of each locomotive shall be required to signal the approach of his train to such crossing in said corporate limits by constantly tolling the bell of said locomotive, and on failure to do so the penalties of

section 94-9903 shall apply to such offense: Provided further, that nothing in this

section contained shall be held to relieve the said engineer or the said railroad company of his or its duty of keeping and maintaining a constant and vigilant lookout along the track ahead of its engine while moving within the corporate limits of said city, town or village, or to excuse such railroad company or such engineer from exercising due care in so controlling the movements of such trains as to avoid doing injury to persons or property which may be on such crossing within said city or within 50 feet of said crossing on the line of such railway, or for failure to observe any ordinance of such city, town, or village, which may lawfully be passed, regulating the speed at which railroad trains may be run therein. .

Ga.Code Ann. § 94-1108: Proof of injury prima facie evidence of want of reasonable skill and care.—In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of locomotives or cars of such companies shall be prima facie evidence of the want of reasonable skill and care on the part of the servants of the companies in reference to such injury.