Opinion
No. 69.
December 7, 1931.
Appeal from the District Court of the United States for the Eastern District of New York.
Action at law by August Carfelo, an infant, by John Carfelo, his guardian ad litem, against the Delaware, Lackawanna Western Railroad Company, brought under the Federal Employers' Liability Act (45 USCA §§ 51-59) to recover damages for personal injuries. From a judgment for plaintiff, defendant appeals.
Reversed.
The plaintiff, a section man in the employ of the defendant, was severely injured when hit by the tender of one of the defendant's engines which was backing in the Hampton Yard of the defendant located on the outskirts of the city of Scranton, Pa. He had been so employed for about two years, and was familiar with conditions at the place he was hurt. He was hit between 9:30 and 10 o'clock on the morning of January 23, 1930, when on a track running about parallel to the track on which he had been engaged in interstate work and would have continued to work had he not been injured. The track to which he had gone was on a level some twenty feet lower than that from which he had come, and he intended to cross it to go into a gully still farther below where the men were accustomed to go because the toilet provided by the defendant on the upper level was unsuitable for use. There was some snow on the ground and two clearly defined paths in the immediate vicinity leading up and down the bank of the level the plaintiff left to go to the tracks below. There was also a path from the lower level down into the gully. The plaintiff went down one of the paths to the lower level on which were the east and west bound main line tracks of the defendant, and walked to the east-bound track; after he had looked, as he testified, in both directions from the top of the embankment and again when at a ditch beside that track and about two feet from it, and had seen no engine or train on it but only a coal train, going west on the west-bound track, made up of thirty-five cars with an engine in front and a caboose and a second engine at the rear. He then looked toward the west without seeing anything on the east-bound track in that direction, and stepped over the nearest rail with his left foot. For about half a minute, he stood there with a foot on either side of the rail waiting for the coal train to pass without looking toward the west again until he heard some one, no doubt one of his own gang of section men, call. At this, he looked up to see an engine backing toward him from the west on the east-bound track at a point only about eight feet from him, and was struck by its tender before he could get away. At that time, the west-bound coal train was just getting past the place of the accident. When the plaintiff looked toward the west as he stepped upon the track, his vision was unobstructed for about five hundred feet to a point near which there was a curve in the track and some smoke and steam from an engine.
The engine which hit him was running light down grade without making the noise that accompanies working steam, while the coal train was being taken up the grade with both its engines working and making considerable noise. The light engine was being operated by its engineer, who had been looking toward the rear, but who was not looking when, and for a short time before, the accident occurred, because he had started the injector and had devoted his entire attention to doing that for a time he estimated at half a minute. The fireman was all the time standing in the cab doing nothing, but his view toward the rear was obstructed by the tank unless he put his head out of the window, and he did not do that because the coal train was passing on his side. Consequently, there was no lookout on the backing engine from the time it came around the curve some five hundred feet from where the plaintiff was hit until it struck him; he was not seen; no signal from that engine was given him; and neither the engineer nor the fireman knew he had been injured until they stopped, as they had intended, some distance down the track and were told of the accident. The rules of the defendant limited the speed of engines in this yard to not more than fifteen miles per hour. Several witnesses called by the defendant testified that it was running at the time of the accident at a speed of from eight to ten miles per hour. The only other witness who testified concerning its speed was an automobile driver called by the plaintiff who looked at the engine for about twenty seconds when it was going away from him and said that it was backing at a speed of between twenty-five and thirty miles per hour.
The issue of negligence based on excessive speed was not submitted to the jury. The plaintiff relied upon the claim that he was struck by the engine and injured when crossing the track at a point frequently used for that purpose and marked by a well-defined path which the defendant knew, or ought to have known, was so used; coupled with the undisputed facts that the engine was operated without a lookout and that no signal or warning of any kind was given him.
Evans, Hunt Rees and William G. Walsh, all of New York City, for plaintiff-respondent.
Douglas Swift, of New York City, for defendant-appellant.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
This appeal brings up for review the ruling of the court in denying the defendant's motion for a directed verdict and some questions relating to the charge.
It was, of course, necessary to take the evidence in the light most favorable to the plaintiff in passing upon the motion for a directed verdict. This required that it be taken for granted that there was not only no lookout on the defendant's engine and no warning or signal given from it to the plaintiff, but that he was crossing the track on a path over it which the defendant knew was there, knew was used by its section men in connection with their work, and that the use the plaintiff was making of it when injured was so closely connected with interstate commerce as to be a part of it. We do not think, however, that the evidence either required or permitted the court to assume that the engine was being operated at excessive speed. The evidence was virtually all to the effect that it was not. The testimony of one witness who based his opinion on what may fairly be called a glimpse of it as it was moving, not past, but away from him, can hardly be called more than a scintilla, and the plaintiff did not even ask to have that question submitted to the jury. See Hammond v. Crawford (C.C.A.) 66 F. 425.
It is obvious that the rights of the plaintiff and the liability of the defendant must be determined from the standpoint of an employee engaged in performing the work of an employer in interstate commerce, for this action is based wholly on the Federal Employers' Liability Act. The duty the defendant may have owed to others at the time and place the plaintiff was injured cannot be brought to bear upon the decision of this case. He must win or lose solely on an application of the law which applies to employees of the class to which he belonged. Chesapeake Ohio Ry. Co. v. Mihas, 280 U.S. 102, 107, 50 S. Ct. 42, 74 L. Ed. 207.
So the problem simmers down to whether or not a section man, working on the track of his employer at the point where a known path, used by all who will, crosses that track, is entitled to be looked out for and warned of the presence of such engines or trains moving toward him as the employer runs along the track. As no custom to give any warning to section men at this place was shown, the rights and duties of these parties are controlled by the law as laid down in the case of Chesapeake Ohio Ry. Co. v. Nixon, 271 U.S. 218, 46 S. Ct. 495, 70 L. Ed. 914, which is binding upon us and which we followed in Biernacki v. Pennsylvania R.R. Co. (C.C.A.) 45 F.2d 677. See, also, Reynolds v. N.Y.O. W. Ry. Co. (C.C.A.) 42 F.2d 164; Toledo, St. Louis Western R.R. Co. v. Allen, 276 U.S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S. Ct. 835, 36 L. Ed. 758. We believe that, in so far as cases like Southern Ry. Co. v. Smith (C.C.A.) 205 F. 360, and Central R.R. Co. of N.J. v. Sharkey (C.C.A.) 259 F. 144, are to the contrary, they have been overruled. Now a section man must rely upon his own vigilance to protect himself from injury by engines and trains his employer operates over tracks on which he may be engaged in the line of his duty without being looked out for by those in charge of such engines or trains or given any warning by them unless he is seen. That is one of the risks he assumes when he undertakes this kind of employment. The fact that he happened to be at a path across the track when he was injured did not decrease this risk which the plaintiff assumed, for he must be treated as still at work when there, else this action would not lie at all, and when so considered we are not free to relieve him of the assumption of risk of not being seen or warned while at work even though the defendant would, perhaps, have been in duty bound to have seen and warned others at that time and place. C. O. Ry. Co. v. Mihas, supra; C. O. Ry. Co. v. Nixon, supra. Since the motion for a directed verdict should have been granted, it is unnecessary to consider exceptions to the charge.
Judgment reversed.