Wilfred L. Miller, and Alban Tractor Company, Inc. v. The Pennsylvania, Railroad Company, a Corporation

272 F.2d 545, 106 U.S. App. D.C. 316, 1959 U.S. App. LEXIS 3086

Opinions

PER CURIAM.

After our decision in Miller v. Pennsylvania R.R., 102 U.S.App.D.C. 135, 251 F.2d 376, a new trial was had before the late Judge Kirkland. The jury returned a verdict for plaintiffs, judgment being entered accordingly. After the death of Judge Kirkland, however, Judge Holtzoff, whose direction of a verdict for the defendant had led to our reversal in Miller v. Pennsylvania R.R., supra, set aside the verdict and granted a new trial. Miller v. Pennsylvania R.R., D.C., 161 F.Supp. 633. The case was then tried a third time. The jury found for the Railroad. An appeal from the ensuing judgment brings the case to us again.

A majority of the court is not of opinion that the verdict for plaintiffs after the trial before Judge Kirkland should be reinstated as having been set aside by an abuse of discretion.

The judgment for defendant on the third trial, however, is reversed and the case remanded, because of the failure of the trial court to instruct the jury that they should find for the plaintiffs if on the evidence as a whole there was negligence on the part of the Railroad, which was the proximate cause of the collision, in the failure of the Railroad to bring the train to a stop when the peril of Miller was or should have been seen. See Miller v. Pennsylvania R.R., 102 U.S.App.D.C. 135, 138, 251 F.2d 376, 379.¹

The trial court also erred in not permitting the issue of negligence on the part of the fireman to be decided by the jury and in instructing the jury (a) that the engineman had a right to assume plaintiffs’ rig was moving and would clear the intersection before the train reached there; (b) that the speed of eighty miles per hour was a proper speed; (c) that the jury had the right to consider whether there is any duty on the part of an engineman to slow down a train on each occasion that he may see a vehicle crossing at an intersection some distance away before he realizes it is stationary and (d) that they should consider, if such a duty were imposed on him, what effect it would have on the operation of railroad trains.

Other alleged errors claimed to have resulted in an unfair trial we do not consider because these alleged errors are unlikely to recur.

Reversed and remanded.

Footnotes

1

. As we also said:

“The jury could have found that in the exercise of the care required of the Railroad, the train crew could have seen the equipment stuck on the track in time to have brought the train to a stop. The Maryland courts hold that a defendant railroad is liable if it knew or should have known that a plaintiff was in a position of peril and if by the exercise of due care the railroad could have avoided the injury, though no negligence on its part contributed in any way to plaintiff being in the perilous position. Thus Maryland has held a defendant railroad liable for failing to avoid a collision * * 102 U.S.App.D.C. at pages 137-138, 251 F.2d at pages 378-379.