Guilford National Bank v. Southern Railway Co.

24 F.R.D. 493, 3 Fed. R. Serv. 2d 621, 1960 U.S. Dist. LEXIS 5396
CourtDistrict Court, M.D. North Carolina
DecidedJanuary 22, 1960
DocketNo. C-185-G-58
StatusPublished
Cited by13 cases

This text of 24 F.R.D. 493 (Guilford National Bank v. Southern Railway Co.) is published on Counsel Stack Legal Research, covering District Court, M.D. North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guilford National Bank v. Southern Railway Co., 24 F.R.D. 493, 3 Fed. R. Serv. 2d 621, 1960 U.S. Dist. LEXIS 5396 (M.D.N.C. 1960).

Opinion

STANLEY, District Judge.

The plaintiff has moved under Rule 34, Federal Rules of Civil Procedure, 28 U. S.C.A., for an order requiring the defendant, Southern Railway Company, to produce, and permit plaintiff to inspect, copy and photograph various specified documents, papers and records.

This action arises out of a train-automobile crossing collision which occurred on the evening of July 13, 1958, in Guilford County, North Carolina. The plaintiff’s testator and testator’s wife, who were the only occupants of the automobile, were killed instantly in the collision.

While the plaintiff did not qualify as the administrator of the estate of Jesse M. Coble, deceased, until July 24, 1958, and plaintiff’s attorneys were not formally retained until August 7, 1958, said attorneys were first called in reference to their availability to handle the case by a friend of the Coble family on the afternoon of July 16, 1958, and began an investigation of the collision on the afternoon of July 18, 1958. A witness was interviewed by one or more of the plain-, tiff’s attorneys on the afternoon of July 19, 1958, and other witnesses were interviewed on July 21 and 22, 1958, but no written statements were obtained from any of the witnesses. The attorneys who are handling the case for the plaintiff are competent and experienced in personal injury litigation.

The plaintiff’s testator was engaged in bridge and road construction work and his estate was amply solvent at the time of his death.

The defendant, Southern Railway Company, began its investigation of the collision immediately after it occurred, and on the day following the collision secured written statements from six witnesses and completed the taking of all of the witnesses’ statements, except three, on July 19, 1958. The written statements of the remaining three witnesses were taken on August 11 and September 8, 1958.

This suit was commenced on September 19, 1958, and answer and third-party complaint were filed on November 17, 1958. The pleadings were completed and issue joined on January 13, 1959.

On January .26, 1959, the plaintiff served on the defendant, Southern Railway Company, pursuant to Rule 33, Federal Rules of Civil Procedure, 28 U.S.C. A., a list of forty-six interrogatories. Interrogatory No. 40 demanded the names and addresses of all persons from whom written statements were obtained in the course of the investigation made by the defendant.

On February 27, 1959, the defendant answered certain interrogatories and obr jected to others. Thereafter, on April 2, 1959, at a pre-trial hearing, the defendant waived its objection to Interrogatory No. 40 requesting the names and addresses of all witnesses from whom it had secured statements, and furnished to the plaintiff the names and addresses of said witnesses, as well as the name and address of the Southern [495]*495Railway Company agent who conducted the investigation. In addition to this information, the plaintiff had previously been given a complete list of the names and addresses of the crew operating the defendant’s train at the time of the collision.

On May 11, 1959, the defendant, Southern Railway Company, pursuant to Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A., served the plaintiff with eighty-six interrogatories. These interrogatories were answered by the plaintiff on September 15, 1959, the time for answering being extended by agreement of counsel, with the approval of the court.

The plaintiff and its attorneys have taken no action under the Federal Rules of Civil Procedure, or otherwise, to examine under oath any of the witnesses whose written statements were secured by the defendant during the course of its investigation. No demand or request has been made on the defendant to make any of its crew available for examination by the plaintiff and its attorneys. The plaintiff has, however, advised the court that it intends to examine the defendant’s train crew under oath after the written statements of the witnesses have been furnished to the plaintiff pursuant to its motion for production, inspection and copying of documents.

The originals of the statements of the witnesses secured by the Claim Department of the defendant are in the possession and custody of W. H. Barnett, Claim Agent for Southern Railway Company, Greensboro, North Carolina, and copies are in the possession of the attorneys who are defending the case for Southern Railway Company.

On August 25, 1959, the plaintiff moved under Rule 34, Federal Rules of Civil Procedure, 28 U.S^C.A., for an order requiring the defendant, Southern Railway Company, to produce, and to permit plaintiff to inspect, copy and photograph, each of the following documents, photographs and diagrams:

(1) The ■ Southern .Railway System’s passenger train schedule in efr •feet from May 11, 1958, to August 10, 1958, ■ under which the defendant’s Train No. 38,. “The Crescent”; was being operated on July 13, 1958.

(2) All records, including reports or bills, relating to the repairs which were made to the locomotive of said train after the collision which occurred on July 13, 1958, including .any descriptions of the nature and extent of the damage which necessitated said repairs.

(3) The written report of the physical and mental examination of Lucian O. Woodson, the engineer who was operating the defendant’s locomotive and train of cars at the time of the collision on July 13,1958, which was made by Dr. Jay L. Smith, Jr., following his examination of Lucian O. Woodson on October 29, 1958.

(4) The written reports of the • regular annual medical examinations of Lucian O. Woodson which were made and delivered to the defendant for the years 1956 and 1957, that is, the two reports of the two examinations immediately preceding the collision which occurred on July 13, 1958.

(5) The records and reports in the defendant’s file with reference to other collisions and accidents which occurred at what is known as the Hilltop Road grade crossing in Greensboro, North Carolina, during the ten years immediately prior to July 13, 1958.

(6) All letters or other written communications in the possession of the defendant which the defendant received from any official or employee of the City of Greensboro prior to July 13, 1958, with reference to the maintenance of the Hilltop Road grade crossing, or the right-of-way adjacent thereto, or the signs and signals located in the [496]*496vicinity of the crossing, or the signs and signals which the City of Greensboro, or its .officials, deemed necessary or desirable to- be erected at said -crossing.

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24 F.R.D. 493, 3 Fed. R. Serv. 2d 621, 1960 U.S. Dist. LEXIS 5396, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guilford-national-bank-v-southern-railway-co-ncmd-1960.