Keith v. Wheeling & LE Ry. Co., 10360.

• Decision Date: 31 March 1947
• Docket Number: No. 10360.,10360.
• Parties: KEITH v. WHEELING & L. E. RY. CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

160 F.2d 654 (1947)

KEITH v. WHEELING & L. E. RY. CO. et al.

No. 10360.

Circuit Court of Appeals, Sixth Circuit.

March 31, 1947.

C. Craig Spengenberg, of Cleveland, Ohio (Harrison, Thomas, Spangenberg & Hull and Marvin C. Harrison, all of Cleveland, Ohio, of counsel), for appellant.

George H. P. Lacey, of Cleveland, Ohio (Squire, Sanders & Dempsey, and Charles F. Clarke, Jr. all of Cleveland, Ohio, on the brief), for appellees.

Before HICKS, ALLEN and MARTIN, Circuit Judges.

HICKS, Circuit Judge.

William Keith, a railroad engineer, brought this action, based upon the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against the Wheeling & Lake Erie Railway Company (herein called Wheeling) and The Pennsylvania Railroad Company (herein called Pennsylvania) for damages for injuries sustained by him in a collision, resulting from alleged negligence of both defendants. The defendants answered separately denying negligence. At the conclusion of the evidence, the District Court directed a verdict for each defendant, on the ground that the engineer's conduct was the sole proximate cause of the accident.

Wheeling, as a part of its railroad system had tracks between Bridgeville, Pennsylvania, and Brewster, Ohio. By agreement between Wheeling and Pennsylvania, either company might "by reason of unforeseen circumstances" detour its trains over the tracks of the other, the "Foreign Company" to use its own engines, engine crews and train crews, but always with a pilot to be furnished by the "Home Company" and subject to all the rules and regulations of the Home Company and the orders of its train dispatcher. The Foreign Company agreed also to hold the Home Company harmless for all loss and damages sustained by reason of such trains being detoured.

On the night of the accident, which occurred about 4:35 A.M., on January 1, 1943, Keith, a Wheeling engineer, and Bush, a Wheeling conductor, were notified to go to Bridgeville and pilot a Pennsylvania train west over the Wheeling tracks to Brewster, Ohio. The engine was No. 7088 and the Pennsylvania crew, including its engineer, fireman, conductor and flagman, remained with the train. On this run, the pilot crew of the westbound No. 7088 received orders at several points, including Sherrodsville, Ohio, where Train Order No. 16 was received, directing that No. 7088 take the west siding at New Cumberland and there meet two eastbound trains. The order was written on a form which had printed at the bottom "Conductor and engineer must each have a copy of this order."

Bush testified that he got a copy of the order, read it, showed it to his flagman, a Pennsylvania employee, and laid it on the desk of the caboose. He did not recall whether the Pennsylvania conductor, who was in the cupola, read it. He further testified that when they went into the siding at New Cumberland, the flagman opened the door of the caboose to throw the switch, and the wind "blew the orders out on the floor of the caboose"; that after the collision they were found back of the stove.

Keith testified that he received a longhand carbon copy of train order No. 16 at Sherrodsville, that he understood what the order meant, namely, that he was to meet two trains at New Cumberland. He testified that he read the order and passed it to the Pennsylvania fireman and then to the Pennsylvania engineer; that he himself repeated the orders to the fireman, as required by the rules, and that after they were handed back to him, he put them in his pocket.

Keith also testified that while No. 7088 was on the siding he helped the fireman take down coal because the latter "was played out"; that in the twenty or twenty-five minutes the train was on the siding, he did not leave the train except probably to oil the engine. One eastbound train passed while No. 7088 was still on the siding. The accident occurred when Keith, admittedly forgetting the order and thinking the track was clear, pulled out of the siding and proceeded west about three miles, where No. 7088 collided head-on with the second eastbound train on a curve, somewhat east of the Valley Junction crossing. The injuries for which he sues were sustained in this collision.

In his opening statement counsel for Keith admitted that Keith was negligent in pulling out of the siding contrary to the orders. However, he based his claim for recovery upon the negligence (1) of Bush, the conductor; (2) of the engineer of the train with which he collided; and (3) of Wheeling in failing to provide block signals.

We now examine the record further to determine whether there was evidence tending to show that conductor Bush was negligent.

The record contained the following matter bearing upon the negligence of Bush: Rule 105 of Wheeling stated, "Both conductors and enginemen are responsible for the safety of their trains and, under conditions not provided for by the rules, must take every precaution for their protection." Rule 106 is, "In all cases of doubt or uncertainty the safe course must be taken and no risks run." Rule 247 provided in part, "The general direction and government of a train from the time of receiving its passengers or freight until it has arrived at destination, is vested in the conductor. He is responsible for its safe and proper movement. * * * In all places and under all circumstances the safety of the train is of first importance, and nothing must be left undone which will secure the same."

There was evidence tending to show that Bush not only lost the order calling for the meeting of two trains at New Cumberland but that during the stay of twenty or twenty-five minutes on the New Cumberland siding, he did not find them, although they were probably on the floor of the caboose the whole time; that he was at least jointly responsible for the train if not in command of it; that he told the Pennsylvania flagman that he did not like pulling out of the siding since he thought two trains were to be met there; that he could himself have stopped the train by applying the air brakes; that having lost his own copy of the order, he could have checked his recollection of the contents of the order with the engineer, in a matter of minutes. He did not do so; but in fact sanctioned the mistaken operation after the train pulled out of the siding. He testified: "We threw the switch and gave him" (the engineer, Keith) "the proceed signal or high ball."

There was evidence tending to show that Keith pulled out of the siding slowly, that after his train was on the main line he proceeded slowly until some member of the crew set the switch for the main line and until he saw the high ball signal, and that he then went ahead. There was evidence that both Bush and the Pennsylvania flagman with him in the caboose could and did see the headlight of what proved to be the oncoming eastbound train, and that Bush could at that time have stopped the train, but did nothing about it.

A resume of the evidence clearly indicates that it was sufficient, if submitted to the jury, to sustain a finding of negligence on the part of Bush.

In sustaining the motion for a...