Gildner v. Baltimore & OR Co.

• Decision Date: 14 June 1937
• Docket Number: No. 420.,420.
• Citation: 90 F.2d 635
• Parties: GILDNER v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

90 F.2d 635 (1937)

GILDNER v. BALTIMORE & O. R. CO.

No. 420.

Circuit Court of Appeals, Second Circuit.

June 14, 1937.

Harold R. Oakes, of New York City, (Robert Schwebel, of New York City, on the brief), for appellant.

Anthony Sansone, of New York City, for appellee.

Before MANTON, L. HAND, and AUGUSTUS N. HAND, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal by the defendant from a judgment entered upon the verdict of a jury in an action by a conductor in its employ, to recover for personal injuries suffered in a switching yard on the night of January 11, 1934. The yard was full of tracks, and the freight train of which the plaintiff was in charge, came in and stopped upon one, called the "passing siding track," just north of the main, or through, track. The plaintiff's first duty was to check the new cars which he was to take on, and to do so he went south across the main track to the tracks of another road, where the new cars lay. After checking these he walked east some seven or eight hundred feet to the station office, and then started back westward to reach his train. Meanwhile the work of switching had been going on. The sixteen front or east cars of the train were cut off, with the engine at their forward end. Ten of these were delivered to the Lehigh Valley Railroad, four were placed on the main track, and two on the "passing siding track," some distance away from the tail of the original train. The time had come to clear the main track of the four cars left upon it, so that a passenger train might pass. The engine with some cars were backed on to the main track, coupled on to the four cars, and the string of twelve to fourteen in all moved east along the main track until it cleared the "passing siding" switch, where it stopped, but only long enough to reverse and back into the "passing siding track." As it came along that track, the first car of the string struck the plaintiff, who was about ninety feet from the switch, threw him down, and ran over his arm. (The defendant's witnesses swore he was struck by a later car). He was between the south rail of the "passing siding track" and the north rail of the main track, and he says he got there as follows. He first walked west from the station along the north side of the main track, and then crossed over to the south side; while walking on that side, the string of east bound cars passed him. He then crossed the main track again to the north side, and went on as he had originally. The fault with which he charged the defendant was in failing to ring the bell at the time the engine, after stopping its eastward movement, began to back the string on to the "passing siding track." He relied upon a rule of the road that "the bell will be rung when an engine is about to move; when moving through tunnels; along the streets of towns and cities; approaching and passing public road crossings at grade, stations and trains on adjacent track." Whether the bell was rung was in dispute, but the verdict is conclusive that it was not.

The indiscriminate ringing of bells in a switching yard has been disapproved by the Supreme Court, as tending rather to confuse than to warn (Aerkfetz v. Humphreys, 145 U.S. 418, 420, 12 S.Ct. 835, 36 L.Ed. 758; Toledo, St. L. & W. R. R. Co. v. Allen, 276 U.S. 165, 171, 48 S.Ct. 215, 217, 72 L.Ed. 513);...