New York, NH & HR Co. v. Pascucci, 2500.

• Decision Date: 11 February 1931
• Docket Number: No. 2500.,2500.
• Citation: 46 F.2d 969
• Parties: NEW YORK, N. H. & H. R. CO. v. PASCUCCI.
• Court: U.S. Court of Appeals — First Circuit

46 F.2d 969 (1931)

NEW YORK, N. H. & H. R. CO. v. PASCUCCI.

No. 2500.

Circuit Court of Appeals, First Circuit.

February 11, 1931.

Madison G. Gonterman, of Boston, Mass. (Eugene J. Phillips, of Providence, R. I., on the brief), for appellant.

John V. Spalding, of Boston, Mass., for appellee.

Before BINGHAM, WILSON, and HALE, Circuit Judges.

WILSON, Circuit Judge.

This is an action to recover under the Federal Employers' Liability Act (45 USCA § 51-59) for injuries received through the alleged negligence of the defendant and appellant in this action. The case was submitted to a jury, which awarded a verdict for the plaintiff.

There is no question but that the work in which the plaintiff, and appellee before this court, was engaged related to interstate commerce, and that he was subject to the Federal Employers' Liability Act. It is contended at the outset, however, that the action was not brought within the two-year period of limitation fixed by the act. Under the law of Massachusetts and according to what now appears to be the uniform practice in the federal courts, an action is begun within the period of limitation when in good faith a writ is placed in the hands of an officer for service. Linn & Lane Timber Co. v. United States, 236 U. S. 574, 578, 35 S. Ct. 440, 59 L. Ed. 725. United States v. Northern Finance Corp. (C. C. A.) 16 F. (2d) 998. This was a question of fact. On this point we cannot say that the jury found in favor of the plaintiff without substantial evidence to support their finding.

It is further urged that the defendant violated no duty it owed to the plaintiff, and that the plaintiff's injuries resulted from dangers, the risk of which he assumed as one of the incidents of his employment.

The undisputed facts are as follows: The plaintiff was employed by the defendant as a laborer and repair worker on its tracks and roadbed. He had been in its employ for some time, and at the time of his injury was an assistant or subforeman of a crew of men. On the morning of his injury he, with his crew, was brought into Boston from Readville on a worktrain to work on a drain underneath or alongside the tracks of the defendant, between the place where the injury occurred and South Station. They detrained at the Back Bay Station, where they were met by an assistant superintendent to give the foreman in charge directions for the day's work. They then proceeded along the tracks of the defendant toward the Tremont street or Castle Square bridge, which, by reason of its construction, forms a tunnel 230 feet long, in which are two incoming and two outgoing tracks of the defendant separated by a brick wall.

Just before arriving at the Tremont street bridge, two regular trains going west passed under the bridge, filling the tunnel with smoke. The men waited for the smoke to clear up, and then started to walk through on the outbound tracks. When they were within 70 feet of the farther end of the bridge, a train passed on the Boston & Albany tracks, which are parallel with those of the New York, New Haven & Hartford Railroad, and are separated from them by a brick wall with semicircular openings in the upper half, and which formed one side of the tunnel through which the men, led by the plaintiff, were then proceeding. Through these openings smoke and steam from the Boston & Albany train poured and again filled the tunnel, so that it was impossible to see objects even a few feet away. Evidently, fully aware of the possible danger from a "draft" or a "switching", or a special train entering the tunnel, they stopped and waited for the smoke to clear up, when suddenly out of the smoke appeared what proved to be a "draft," so called, composed of three empty passenger cars, an engine, and tender, which was being backed from the South Station into the Roxbury yard. Some of the crew succeeded in reaching points of safety. The plaintiff, who was nearer the on-coming cars, failed to do so, and was hit by one of the cars and severely injured.

It is also undisputed that before the smoke filled the tunnel the men could see through the tunnel and beyond for nearly, if not quite, 900 feet, and saw no train approaching. It is also undisputed that, when the "draft" came around a curve, eight or nine hundred feet from the tunnel, the tunnel was already filled with smoke from the Boston & Albany train, and, without slackening their speed or giving any warning by lights, whistle, or bell, the "draft" backed into the smoke-filled tunnel.

There are some disputed questions of fact which are stressed by counsel on one side or the other. The plaintiff testified, and his testimony was corroborated by two or more of the crew, that the assistant superintendent, after the smoke had cleared away, before the men entered the tunnel, said to them: "Go ahead. There will not be another train for fifteen or twenty minutes," or words to that effect. Others of the crew said they did not hear that statement. Whether given or not, it is quite clear that the plaintiff and the other members of the crew did not understand that it meant there would be no "draft," or switching, or irregular movement of cars during that period, since as soon as they found themselves enveloped in smoke they all stopped and waited, and, as one or more testified, they were on the "watch for all trains, all the time."

There is a rule of the railroad company that, on all "drafts" backing within the yard, there must be two men on the rear platform of the first car as the draft proceeded, "to watch for and call signals." There was some question raised by the plaintiff's testimony as to whether this rule was complied with; but we think the jury upon the evidence was not warranted in finding, nor do we know that they did find, that there was a breach of this rule, or that it was adopted to insure the safety of track workers. Of course, if the men on the rear platform saw conditions endangering the lives of workmen, which it was within their power to avoid, it would be their duty to do so, though not stationed on the rear platform for that purpose.

Such "drafts" are obliged to proceed according to block signals controlling all train movements in the yards. An engineer or fireman while backing a "draft" obviously could not see the block signals, and such a movement, therefore, absolutely requires two men on the rear platform to watch for the signals and call to each other, operate air brakes, and control the movement of the train according to the signals. The two men supposed to be on the rear platform of the "draft" in this instance testified that they were at their stations, and controlled...