Chicago & NW Ry. Co. v. Garwood

• Decision Date: 28 April 1948
• Docket Number: No. 13637.,13637.
• Citation: 167 F.2d 848
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: CHICAGO & N. W. RY. CO. v. GARWOOD.

167 F.2d 848 (1948)

CHICAGO & N. W. RY. CO. v. GARWOOD.

No. 13637.

Circuit Court of Appeals, Eighth Circuit.

April 28, 1948.

COPYRIGHT MATERIAL OMITTED

Alfred E. Rietz, of Farmington, Minn. (Lowell Hastings, of Chicago, Ill., on the brief), for appellant.

Irving H. Green, of Minneapolis, Minn. (William A. Tautges, of Minneapolis, Minn., on the brief), for appellee.

Before SANBORN, JOHNSEN, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

This is an appeal from a judgment entered upon a jury verdict in an action brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for injuries sustained by appellee when struck by one of appellant's passenger trains. In the complaint appellant was charged with negligence resulting in appellee's injuries (1) in failing to use reasonable care to furnish appellee a safe place to work, (2) in operating its passenger train at an excessive rate of speed, (3) in failing to keep a lookout for employees of appellant on the track at the point where appellee was working at the time of his injuries, and (4) in failing to warn appellee of the approach of the train which struck him. The defense was a denial of negligence of appellant and the charge that appellee's negligence in failing to keep a lookout for trains was the sole cause of his injuries.

The appellee had been in the employment of appellant as a section laborer for more than 20 years, and several years prior to the time of his injury he had been a section foreman in charge of the section of track on which his injury occurred. On the morning of the accident the section crew was engaged in lining the track at a point about three-quarters of a mile west from the town of Luzerne, Iowa. Before going to work that morning the appellee had called the train dispatcher for information concerning trains which would pass the point where the section crew was to work. He was informed that westbound freight train No. 253 would pass the scene of the work some time that morning, and that eastbound passenger train No. 2, a fast through train from the west coast would leave Boone, Iowa, a station on appellant's railway west of the accident, at 7:50 A. M. Appellee knew that ordinarily train No. 2 would reach the place where his crew was working at about 9 o'clock in the morning.

On the day of the accident the appellee and his section crew set off their motorcar near mile post 112, which was approximately 400 feet east of the beginning of a curve in appellant's tracks and more than 1000 feet west of another curve in the vicinity of Luzerne. Appellant operates double tracks on this part of its railway line. The section crew began work on the westbound track near mile post 112.

About 10 o'clock in the morning westbound freight train No. 253 passed the place where the work was being done. This train of approximately 100 cars was moving at a speed of 40 miles an hour. On its approach the section crew left their work on the westbound track, four of them taking their positions on the south side of the westbound track, and four, including the appellee, on the north side of the eastbound track.

At the point where the accident occurred appellant's tracks are laid upon an embankment which is from six to ten feet higher than the level of the adjacent ground. The rails and ties are laid upon ballast of crushed rock, raising the top of the rails about two feet above the level of the railway embankment proper. Appellee and the section hands who stood on the north side of the eastbound track while the freight train passed took their positions on the shoulder of the embankment proper, referred to in the evidence as the sub-shoulder. While the freight train was passing, appellee stood on this sub-shoulder four or five feet from the north rail of the eastbound track, and about two feet below the level of the top of the rails of that track. The four men on the south side of the westbound track occupied like positions on the railway embankment.

The rules of the railway company required section laborers to stand in places of safety while a train passed and to inspect the cars in the train for hot boxes, dragging brake beams, swinging doors, flat wheels, and other defects visible to them as the train passed, and on discovery of any of these defects to signal the trainmen in charge of the train. It was the custom in the operation of appellant's railway for sectionmen to give the trainmen in charge of a passing train a wash-out signal on the discovery of any defects endangering the operation of the train and a highball signal in case no defects were discovered. The rules of the railway company also made the section foreman responsible for the safety of himself and of the men under him. By these rules the section foreman was advised that trains might be moving over the tracks at any time, and in double track territory on either track in either direction. He was required to maintain a lookout for all trains, and to give his men adequate warning of the approach of a train in time to enable them to leave their work and move from the tracks to places of safety. All the rules just mentioned were definite and certain, permitted no exceptions, and were fully understood by the appellee and the members of his crew.

While the freight train was passing, the four sectionmen on its south side and the appellee and three sectionmen on the north side looked carefully at each car as it passed in obedience to the rule requiring them to inspect passing trains. When the caboose or last car of the freight train passed, the appellee left his position on the subshoulder of the embankment, moved to a position very close to the north rail of the eastbound track, looked to see what signal the men on the south side of the train were giving to the trainmen, and turned to the west to repeat the signal. As he did so, he discovered eastbound train No. 2 within 50 feet of him, according to his estimate. He was then standing on the crushed rock ballast on which the eastbound track was laid. Attempting to move away from the track, his right foot slipped in this loose rock, he fell or was drawn toward the train, and was struck by some part of the engine. He was thrown to one side of the embankment and suffered a broken arm, broken or cracked ribs, abrasions on his face and body, and a severe wound in one shoulder. He did not know what part of the engine struck him, but it seems clear from the fact that he survived the force of the impact that the blow he received must have been a glancing one.

Appellee testified that while he stood in a position of safety on the sub-shoulder of the railway embankment observing the passage of the freight train and inspecting it for defects dangerous to its operation, he looked both to the east and west and neither saw nor heard an approaching train. He said that just at the time he left his position of safety he looked to the west and did not see or hear passenger train No. 2. At that time he was standing approximately 200 feet from the beginning of the curve to the west of him around which the passenger train was then approaching. He estimated that he had a clear view of the track to the west of from 400 to 450 feet. Seeing no train he moved about two and one-half feet from his position of safety, which brought him almost to the end of the cross ties on the eastbound track. He said that he remained in this position, which clearly was a position of danger from any train moving on that track, for a matter of seconds. During that time he never again looked toward the west nor listened for an approaching train. It is clear that if he had looked to the west he could have seen the train in time to have avoided his injury. His explanation of this conduct was that he was required in the discharge of his duties as foreman to see what signal the men on the south side of the train gave before giving his signal to the trainmen in charge of the freight train. His attention was directed to observing the action of the men on the south side of the track. He admitted that it was his duty to maintain the railway ballast and embankment in proper condition at the point of the accident, and he stated that there was nothing wrong with either at the time the accident occurred.

As tending to show negligence of the enginemen on the passenger train, appellee relied in part on their alleged failure to comply with appellant's Rule 116. One section of this rule requires the enginemen on a train approaching an obscure curve to sound two long and two short blasts of the whistle. Another section requires that a succession of short blasts of the whistle shall be sounded when the enginemen discover persons on the track ahead of the train. Appellee testified that he heard the whistle of the freight train as it approached the curve east of the point where the accident occurred, and that the whistle was sounded when the train was at least 1000 feet east of the point of the accident. He said that if the passenger train had sounded the whistle as it approached the curve west of the point of the accident he woud have heard it. He did not say that at any time while he stood in a position of safety on the sub-shoulder of the railway embankment he listened for that particular whistle of the passenger train.

Five of the sectionmen were called as witnesses for appellee. None of them heard any whistle from the passenger train until the moment of impact or almost immediately before appellee was struck. None of them testified that he listened for the whistle of the passenger train as it approached the curve west of the point of the accident. All of them, as well as appellee, testified to the loud noise of the freight train as it passed, and all of them and appellee admitted that while the freight train was passing their attention was fixed upon the inspection which they were required to give it. Two of these witnesses said that the noise of the freight...