Washington & OD Ry. Co. v. McPherson

• Decision Date: 04 June 1928
• Docket Number: No. 4659.,4659.
• Citation: 26 F.2d 989
• Parties: WASHINGTON & O. D. RY. CO. v. McPHERSON.
• Court: U.S. Court of Appeals — District of Columbia Circuit

26 F.2d 989 (1928)

WASHINGTON & O. D. RY. CO. v. McPHERSON.

No. 4659.

Court of Appeals of District of Columbia.

Submitted April 5, 1928.

Decided June 4, 1928.

W. J. Lambert and R. H. Yeatman, both of Washington, D. C., for appellant.

Crandal Mackey, of Washington, D. C., for appellee.

Before ROBB and VAN ORSDEL, Associate Justices, and SMITH, Judge of the United States Court of Customs Appeals.

SMITH, Acting Associate Justice.

This is an appeal from a judgment of the Supreme Court of the District of Columbia in favor of the plaintiff, Arthur W. McPherson, and against the Washington & Old Dominion Railway Company, the defendant and appellant, for the sum of $7,500, for personal injuries alleged to have been sustained by the plaintiff by reason of the negligence of the defendant in the operation of one of its trains.

Statement of Evidence Submitted to the Jury.

The Washington & Old Dominion Railway Company, a corporation, at the times hereinafter specified, owned and operated a line of railway which carried freight, mail, and passengers between Bluemont, Va., and the city of Washington in the District of Columbia. The rules of the company required that all extra trains should leave the track clear for the passage of regular trains and avoid interference with the time schedule prescribed for them. Under the regulations, the work extra train was an outlaw, and, whether standing or moving, had to protect itself against other extras. It was the duty of motormen and enginemen to keep a vigilant and constant lookout for signals and especially for a display of red which meant "danger, stop." Trainmasters were charged with the operation of trains, the movement of rolling stock, and traffic. All employees, including flagmen, were subject to the order of the trainmaster, and upon him rested the final responsibility for the safety and movement of trains. The signaling of trains was the special charge of flagmen, and it was not only the custom but the duty of flagmen to board moving trains to which they were assigned. They were bound to obey orders of the trainmaster and conductor, but were not obliged to wait for orders or for signals when the train to which they belonged needed protection.

On September 18, 1919, a work train, operated by the company for the purpose of transporting labor, material, tools, and implements used in keeping its tracks and roadbed in proper repair was proceeding from Bluemont eastward towards Washington. During the trip the conductor of the work train received telegraphic orders to look out for extra train No. 300 which was following the work train and getting close. In consequence of those orders, the conductor, on finding the main line blocked at Goose Creek Bridge, ordered the plaintiff, the work train flagman, to flag and board the following train. The plaintiff complied with the conductor's instructions, and, after flagging No. 300, the following train, boarded it for the purpose of returning to the work train of which he was the flagman. When No. 300 reached Belmont Park, Trainmaster La Hue told the plaintiff that No. 300 was going no farther, and directed him to take passenger train No. 12 in order that he might catch up with his work train. McPherson boarded passenger train No. 12, and, upon reporting to Patterson, the motorman thereof, told him to look out for the work train ahead. Although McPherson was well known to Patterson as the flagman of the work train, "he turned around in a very angry manner and made no reply on receiving McPherson's warning." When passenger train No. 12 reached Ashburn Station, McPherson, who was then standing within three feet of Patterson, alighted and went to the station telegraph operator for the purpose of securing information as to the location of his work train. McPherson was informed by the telegraph operator that the work train was at Sterling, a point east of Ashburn and nearer to Washington.

While McPherson was seeking information as to the location of his work train, Motorman Patterson backed train No. 12 into a siding to the westward of the station to allow train No. 5 from Washington to pass. Patterson's train remained on the siding until No. 5, after discharging and taking on passengers, departed for points to westward, thereby leaving the track clear at Ashburn for east-bound trains. The switches were then thrown and passenger train No. 12 came out of the siding and onto the main line. McPherson testified that as No. 12 came up to the station he stood with his right foot near the rail and waved his red flag which was the signal to stop. According to the witnesses for the plaintiff, Patterson, the motorman of No. 12, was looking at McPherson while he stood near the track, and there was nothing to prevent Patterson from seeing the red flag signal waved by McPherson. McPherson said that, standing near the track with the train coming towards him, he could not well tell the speed of the train, but that it appeared to him that its speed was not more than 4, 5, or 6 miles per hour. Noting that the train was not going to stop or reduce its speed, he braced himself to catch the handrail of the second coach, believing that the speed of the train was not so great as to render the boarding of it unsafe. His left hand missed the rail and broke the grip he managed to get with his right hand. The toe of his right foot slipped off the step of the car, and his right leg was caught under the wheels and so badly crushed that it had to be amputated.

The evidence is uncontradicted that it was the practice and custom of flagmen to board moving trains, and that the proper discharge of their duties as flagmen required them to do so. At the time that McPherson made his attempt to get on the train, its speed was 10 or 12 miles per hour according to the brakeman, 20 miles per hour according to Flagman Havener, and from 12 to 18 miles per hour according to other witnesses. Flagman Schooley, after throwing the switch to let No. 12 enter the main track, boarded the train at the switch while it was going slowly. Schooley testified for the defendant that the train began to pick up speed after it left the switch, but that when it got to the station it had not quite reached a speed of 4 or 5 miles an hour. Patterson, the motorman, a witness for the defendant testified that, when the switch was thrown to bring No. 12 onto the main line, he had the controller almost entirely cut off and came almost to a stop to pick up Flagman Schooley. Patterson admitted that he began to build up speed after Schooley boarded the train, and that when the train reached the station its speed was in the running series. Patterson stated that after he saw McPherson standing on the station platform at Belmont he did not see him again, and that McPherson did not come out to the track or wave a red flag as the motorman's end of No. 12 passed Ashburn. Patterson knew that McPherson was a flagman, and had seen him on the work train. Testimony was introduced on behalf of the defendant tending to show that the plaintiff was talking to some young women on the platform with his back to the track, and that he turned and ran to catch the train just as it was about to pass the station.

During the course of the trial, Pauline Bodmer, a witness for the defendant, testified on direct examination that, at the time No. 12 was approaching the station on its way to Washington from the siding, she was facing the track, and that McPherson was talking to her with his back to the...