Chesapeake Beach Railway Co. v. Brez

39 App. D.C. 58, 1912 U.S. App. LEXIS 2187

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 30, 1912
• Docket: No. 2281
• Status: Published

Opinions

Mr. Chief Justice Shepard

delivered the opinion of the Court:

The fundamental questions presented by the record arise on assignments of error relating to exceptions taken to tbe refusal of the court to direct a verdict for the defendants.

1. Assuming, for the time being, that both defendant corporations are responsible for the operation of the cars on the scenic railway, the first question is whether there was sufficient evidence to warrant the submission of the issue of negligence to the jury. “The provinces of the court and jury in the Federal judiciary system are separate and distinct, and the line of division between them must be carefully observed. The ascertainment of this boundary is often a matter of difficulty in a particular case, and when the difficulty arises doubts should be resolved in favor of trial by jury, which is the constitutional right of every suitor in the courts of common law. . . . And the court is never justified in directing a verdict, except in cases where, conceding the credibility of the witnesses,, and giving full effect to every legitimate inference that may be deduced from their testimony, it is nevertheless plain that the party has not made out a case sufficient in law to entitle him to a verdict and judgment thereon.” Adams v. Washington & G. R. Co. 9 App. D. C. 26-30, and cases cited. In other words it is only where all reasonable men can draw but one inference from the facts that the question is one of law for the court. Jennings v. Philadelphia, B. & W. R. Co. 29 App. D. C. 219-235, 10 Ann. Cas. 761; Marande v. Texas & P. R. Co. 184 U. S. 173-191, 46 L. ed. 487-495, 22 Sup. Ct. Rep. 340.

Applying these principles to the evidence, we are of the opinion that the court did not err in submitting the issue to the jury. The death of the plaintiff’s intestate may be accounted for by two inferences from all of the facts given in evidence. One is that, by unnecessary exposure, his head came in contact with a post some 18 inches from the side of the car; the other that he was struck by some piece of the superstructure falling therefrom, which knocked him down and caused his head to come in contact with the post. Whether it inflicted a mortal wound, or only knocked him over so that his head struck the post, is immaterial. As recited in the statement, two witnesses saw a flash of some falling object. Both dodged it. Immediately was heard the cry of the little girl, “My papa is killed.” As the car track was under a roof, the falling object must have come from the superstructure, which was an essential part of the construction. Other testimony showed that the deceased was sitting firmly in his seat with his right arm extended back of his child and the hand holding the handle on that side. The witness who saw him looking out said that he turned his head, but not his body. The stenographic report notes that he indicated the position, but there is no description of his motion. The witness also said that deceased struck two posts. His body was limp, and the second post pulled it from the car. Another witness in the rear car did not see deceased strike but one post. He had lurched forward ;and fallen down in the foot space of the car; had practically fallen out of the seat. Was perfectly helpless and had no use •of himself. His attention was arrested by a cry and when he looked up deceased was part of the way out of the car. These witnesses did not see the falling object, and may naturally have supposed that deceased was struck only by the post. The supposition that two posts were struck is inconsistent with the statement of other witnesses. But one post was found to have blood upon it. Witness was sitting firmly in his seat and holding to the handle on the right side. There was no lurch of the car to throw him from his balance. A witness for defendant said deceased dropped down in his seat, dropped a little more, and was then struck by the post. All were attracted by the cry of the little girl, which immediately followed the dodging of the falling object by the two witnesses in front. It was after this cry that deceased dropped down between the seats, his limp body protruding from the car. This protrusion may have been what was seen by the distant witness who saw him turn around and look down towards the grounds. There was no one beneath to look for, as the car was over the water of the bay. The structure was promptly closed by the management and no one was allowed to inspect it.

It was the province of the jury to reconcile any conflict in the evidence, and to draw the proper conclusion from all the' facts and circumstances.

Their conclusion was that some part of the overhead structure—a piece of beam, or a bolt, or whatever else it might be ■—was loosened, and falling struck the deceased, causing him to fall from his seat and protrude his body far enough to strike the post which crushed his skull and dragged him from the car.

The learned trial justice approved the verdict, and we agree with him that the conclusion was not unreasonable.

Defendants did not move for a directed verdict until they had produced their evidence in opposition. Strange to say, they did not produce the gripman, who was in a better position than any passenger on the cars to see what caused the injury, although they had him in attendance upon the court. Moreover, while the structure was closed so that the public could not inspect its condition at the place of the accident, no evidence was produced to show that defendants had inspected it so as to ascertain if anything was out of order. Nor was there evidence produced to show that the structure had been inspected prior to the accident, and found safe and in good repair. Producing weaker evidence when stronger might have been produced lays the defendants open to the presumption or suspicion that the stronger evidence would have been to their prejudice. The New York, 175 U. S. 187—204, 44 L. ed. 126— 133, 20 Sup. Ct. Rep. 67; Runkle v. Burnham, 153 U. S. 216-224, 38 L. ed. 694-697, 14 Sup. Ct. Rep. 837; Graves v. United States, 150 U. S. 118-121, 37 L. ed. 1021-1023, 14 Sup. Ct. Rep. 40. In the case last cited, it was said: “The rule, even in criminal cases, is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.”

This brings us to the consideration of some of the exceptions taken to the charge of the court in submitting the issue to the jury. The only one important to discuss is the 3d special instruction given at the request of the plaintiff, as follows: “If the jury find from the evidence that Coleman Brez at the time of his death was a passenger for hire on said scenic railway, and that part of said structure fell, causing him to be struck and killed by coming in contact with some part of said scenic railway, then the jury are instructed that the fact of such falling of such scenic railway,'in the manner aforesaid, raises a presumption of negligence in the operation of said railway, and their verdict should be for the plaintiff, unless they should further find that such presumption is overcome by a fair preponderance of evidence showing that said defendants were not guilty of ngeligence in the conduct or maintenance of said railway.”

This instruction correctly applies the law to the issue presented by the evidence, and is expressly limited thereto. The case of Weaver v. Baltimore & O. R. Co. 3 App. D. C. 436, upon which defendants rely, involves a different state of facts. No injury occurred to the means of transportation. The party voluntarily protruded his head from the door of the car and came in contact with a bridge timber. But it was declared to-be the law in that case that when an injury occurs through some accident to the means of transportation, which is under the management of the carrier’s employees, and which, if they exercise proper care, could not ordinarily happen, it affords-reasonable evidence, in the absence of explanation, from which the negligence may be inferred. This principle was not applicable to the facts of that case. A similar instruction to-this was sustained in a recent decision of the Supreme Court of the United States in an action for damages for injury resulting from a high current of electricity that was carried into plaintiff’s house, through contact of the primary wire with the secondary wire, intended to carry a low voltage for lighting the house. It was said by the court that “These circumstances-pointed so persuasively to negligence on its part that it was. not too much to call upon it for an explanation. Of course, if the cause of the-injury was one which it could not have-been foreseen and guarded against, it was not culpable, but,, in the absence of that or some other explanation, there was enough to justify the jury in finding it culpable. This was all that was meant by the instruction, reasonably interpreted. * * * When so read it rightly declared and applied the doctrine of res ipsa loquitur, which is, when a thing which causes injury without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care,—it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant’s want of care.” San Juan Light & Transit Co. v. Requena, 224 U. S. 89, 56 L. ed. 680, 32 Sup. Ct. Rep. 399. See also Kohner v. Capital Traction Co. 22 App. D. C. 181-186, 62 L.R.A. 875.

2. The second question raised by the assignments of error relates to the separate liability of the Chesapeake Beach Railway Company for the operation of the scenic railway. The court refused an instruction asked by said railway company to the effect that there was no sufficient evidence to show that the railway company erected, operated, or maintained .’the scenic railway at the time of the accident. The issue was submitted to the jury upon instructions asked by the plaintiff. The first was to the effect that if the jury believed from the evidence that the railway company operated Chesapeake Beach as a pleasure resort, in connection with its railway; that the hotel company was under the control of, and operated by, the railway company as one of its departments in the maintenance of Chesapeake Beach; and that the hotel company as the agent of the railway company operated the scenic railway,—the verdict should bo against both defendants, if found guilty of negligence. The second instruction was to the effect that if the jury found from the evidence that the railway company apparently or nominally controlled the amusement resort and the scenic railway; that it paid the salaries of the employees of the hotel company, and the employees who conducted said scenic railway and policed said resort; that it hired and paid the musicians employed in the dancing pavilion; that it advertised the place as a public amusement and pleasure resort, paid for said advertisements, and operated the hotel company as one of its departments in the conduct and operation of the said resort,—their verdict should be against both defendants. The liability of the railway company is not that of a lessor for a substantial defect in a structure let to a lessee for operation, as in certain cases cited on the argument: Thompson v. Lowell, L. & H. Street R. Co. 170 Mass. 577, 40 L.R.A. 345, 64 Am. St. Rep. 323, 49 N. E. 913; Barrett v. Lake Ontario Beach Improv. Co. 174 N. Y. 310, 61 L.R.A. 829, 66 N. E. 968; Riley v. Simpson, 83 Cal. 217, 7 L.R.A. 622, 23 Pac. 293. Nor is it governed by another class of cases: Pennsylvania R. Co. v. Jones, 155 U. S. 333, 39 L. ed. 176, 15 Sup. Ct. Rep. 136; Chesapeake & O. R. Co. v. Howard, 178 U. S. 153—166, 44 L. ed. 1015—1020, 20 Sup. Ct. Rep. 880. The facts of the last-cited case are in some respects analogous, but not to such an extent as to make it govern this. Reasoning from general well-known principles applicable to torts committed by corporations, which govern liability for the acts of their employees and agents, we are of the opinion that the court did not err in refusing to direct a verdict for the defendant railway company, and that the instructions given correctly instructed the jury as to the law applicable to the facts and circumstances in evidence.

Mr. Moffatt, a Denver banker, was the originator of the Chesapeake Beach enterprise, and furnished the money for its exploitation. He was the owner of the land on which the various places of amusement were situated. He first organized the Chesapeake Beach Railway Corporation with a capital stock of $1,000,000, to build and operate the railway between the city of Washington and the beach resort. Of this stock he was the owner of 83 per cent. The scenic railway, board walk, pavilion, and other adjacent places of amusement and dissipation, were built later; by whom or at what cost does not appear. The chief business of the railway company was carrying passengers who might be attracted by the amusements offered. It advertised these amusements regularly in the Washington newspapers, and paid for them. It hired and paid the band that played daily in the pavilion. Later, Mr. Moffatt organized the hotel corporation with a capital stock of which he owned all but the ten shares necessary to qualify the directors. The officers of the railway company occupied corresponding positions in the hotel company. It is apparent that the capital stock of the hotel company, if fully paid, would not be sufficient to pay for the improvements before mentioned; and it would not be unreasonable to infer from the evidence as to other payments that these were paid for by drafts on the treasury of the railway company. The charters of the corporation, obtained in Maryland, do not appear in the record, and the scope of their powers do not therefore appear. It is immaterial whether the railway corporation was empowered to maintain the several amusement places, as it would not be relieved from liability for torts committed while acting ultra, vires. The evidence tends to show that the principal office of the railway company was occupied by the same officers, as officers of the hotel company. All officers and employees, whether engaged in the train, hotel, or amusement service, were paid by checks of the manager of the railway company upon its bank account. The pay rolls produced in evidence for the month of August, 1908, are made out on blanks of the railway company and bear the approval of its general officers. The blanks on their face represented three different departments, namely, “Machinery,” “Police,” and “Hotel.” The gripman on the scenic railway appears on each roll as car cleaner, watchman, and gripman. The superintendent of the resort, as he subscribed himself, acted in that capacity during the summer months, and as agent and telegraph operator for the railway company during the remainder of the year¡ In the name of superintendent of the hotel company he collected the revenues from the holders of concessions, and the receipts of the scenic railway from the ticket sellers. All receipts from these sources and from the hotel were paid to the managing officer of the railway company and deposited to its credit in a Washington bank. No other bank account was kept. All these receipts were entered on the cash book of the railway company. No other books were kept save such as showed transactions with Mr. MofFatt. The entire business was run at a loss. From time to time MofFatt advanced the necessary sums to meet the deficit. It was testified that the account kept with him showed the debits and credits of each corporation. But each advance to cover the general deficit was met with the promissory note of the railway company alone. No obligation was ever given by the hotel company. This action of the controlling spirit and directing hand of the entire enterprise, as well as the limited capital stock and want of tangible property, by the hotel company, indicate that he regarded the railway company as the responsible party, for all the purposes of his original enterprise. It is possible that, in anticipation of such a situation as this, he put the scenic railway under the ostensible management of the hotel company, as a separate concern. This manner of operation is not an unusual one. Be this as it may, however, the facts and circumstances in evidence were sufficient, in our opinion, to warrant the submission to the jury of the issue whether the hotel company was but a department of the railway company, and its agent for the operation of the scenic railway as a feature of the resort. Some other points have been made under the assignments of error, but those discussed serve to dispose of the case.

The judgment against each defendant will be affirmed with costs. ' Affirmed,