Farley v. Norfolk & W. Ry. Co.

• Decision Date: 08 June 1926
• Docket Number: No. 2469.,2469.
• Citation: 14 F.2d 93
• Parties: FARLEY v. NORFOLK & W. RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

14 F.2d 93 (1926)

FARLEY v. NORFOLK & W. RY. CO.

No. 2469.

Circuit Court of Appeals, Fourth Circuit.

June 8, 1926.

A. Henry Walter, of Washington, D. C., for plaintiff in error.

H. C. Duncan, Jr., of Huntington, W. Va. (F. M. Rivinus, of Philadelphia, Pa., and Holt, Duncan & Holt, of Huntington, W. Va., on the brief), for defendant in error.

Before WADDILL and PARKER, Circuit Judges, and COCHRAN, District Judge.

PARKER, Circuit Judge.

Harrison Farley was killed by cars of the Norfolk & Western Railway Company in a crossing accident at Kenova, W. Va., on October 30, 1924, and this action was instituted by his widow, as administratrix, to recover damages on account of his death, which is alleged to have been caused by the negligence of the defendant company. The parties will be referred to here in accordance with the positions which they occupied in the court below. The District Court directed a verdict in favor of the defendant, and the correctness of this ruling is the principal point raised by the assignments of error.

The deceased, Harrison Farley, was struck by the leading car in a string of five cars, which was being pushed along the city track of defendant and over its Fifteenth street crossing in Kenova. Fifteenth street runs north and south; the city track runs east and west. Immediately south of the city track is the belt line track of the defendant, from which the city track branches off approximately 25 feet west of Fifteenth street. Eighty-two feet south of the belt line track is the main line of the Chesapeake & Ohio Railway Company, just north of which is the passing track of the Chesapeake & Ohio. There are four railroad tracks, therefore, at this Fifteenth street crossing, which is shown by the evidence to be located only 75 feet from the City Hall, and to be the crossing principally used by the people of Kenova. The railway companies employ a crossing watchman, whose duty it is to watch the tracks, both of the defendant and the Chesapeake & Ohio.

At the time deceased received his fatal injury, a fast train of the Chesapeake & Ohio was passing over the crossing, on its main track, going in a westerly direction, at the rate of 50 miles an hour. The crossing watchman was standing about 15 feet north of the Chesapeake & Ohio tracks, and 50 feet or more south of the Norfolk & Western belt track, holding up a stop signal. Deceased was walking down the sidewalk on the west side of Fifteenth street going south. The evidence shows that he was 67 years of age, was "hard of hearing," and was totally blind in his right eye. Just as he reached the city track of the defendant, he was struck by the cars, which approached from his right. The cars were moving very slowly (about 2 miles an hour) and with very little noise, in an easterly direction. The bell of the engine was ringing, but the engine was behind the cars, five car lengths (more than 200 feet) away from the crossing and on the belt line track. The engine was more than twice as far from deceased as the fast train of the Chesapeake & Ohio which was passing at the time. There was no trainman on or preceding the leading car, although the rules of defendant introduced in evidence provided:

"103. When cars are pushed by an engine, except when shifting or making up trains in yards, a trainman must take a conspicuous position on the front of the leading car.

"103 (a). Cars must not be backed or cut loose or allowed to run over a street, highway or private crossing, in yard or elsewhere, without a trainman on the front of or preceding the leading car."

Defendant brought out on cross-examination that deceased was reeling or pitching forward as he walked, as though he were drinking or something were the matter with him; also that a brakeman of defendant, standing about 4 feet from the sidewalk and some distance south of the belt line, shouted to deceased as he was going upon the tracks. Another employee of defendant, who claimed to have been standing on the east side of Fifteenth street, testified that he saw that deceased was going on the track when he was 4 or 5 feet away, and shouted to him.

The first inquiry is whether there was sufficient evidence to go to the jury on the question of negligence on the part of the defendant. We think that there was. Defendant was pushing cars ahead of an engine over a much used public crossing in the heart of the town, without having a trainman on the leading car or preceding it to give warning of their approach, although this was expressly required by its rules. No signals were being given except by the bell of the locomotive, which was on a different track, five car lengths away, and this was being done at a time when the attention of persons in the street might naturally be expected to be diverted by the passage of the fast train of the Chesapeake & Ohio on a nearby track, and when the crossing watchman, upon whose presence at the crossing the public would naturally depend for a warning of danger, was engaged at the Chesapeake & Ohio crossing. Upon this evidence, the issue as to negligence was one for the jury to determine. Waid v. C. & O. Ry. Co. (C. C. A. 4th) 14 F.(2d) 90, decided this term; Bowles v. C. & O. R. Co., 61 W. Va. 272, 57 S. E. 131; Chicago, R. I. & P. Ry. Co. v. Sharp (C. C. A. 8th) 63 F. 532, 11 C. C. A. 337; 33 Cyc. 1107.

The learned District Judge seems to have based his direction of a verdict upon the evidence that the two employees of defendant hallooed at deceased before he went upon the track, and upon the theory that this was a sufficient compliance with the duty imposed upon the defendant. We think, however, that this was peculiarly a question for the jury to decide. It is a fair inference from the testimony that the deceased, either did not hear the shouts, or did not realize that they were intended as a warning of the approaching cars. Brakeman Smith, who shouted to deceased, was south of the track 10, 15, or 25 feet, according to the various estimates of witnesses. The other employee, who was not on duty at the time, shouted to defendant from the east side of the street. The rules of the defendant required that a trainman be stationed on the leading car, or that he precede same, to give warning of danger; and it is manifest that a warning given by a trainman so stationed, being given from the source of danger, would be more effective than the shouting of trainmen from other positions, which might serve to confuse, rather than to warn. In the case of a person struck by an automobile, it would hardly be contended that a shout by a bystander 25 feet away would take the place of a signal by the person driving the machine. At all events, the violation of the rules having been shown in the backing of the cars, it was for the jury to say, under all the evidence, whether defendant had failed to use that degree of care for the safety of the public which reasonable prudence required, and, if so, whether such failure to use due care was the proximate cause of the death of deceased.

It is urged, however, that we should affirm the judgment below, on the ground that the evidence conclusively showed contributory negligence on the part of the deceased. And, in this connection, the defendant relies upon the well-established rule that it is the duty of a traveler along a street or highway to look and listen for approaching trains before going upon a railroad track, and that one who goes upon a track without looking or listening and is injured by an approaching train or cars, which, in the exercise of due care, he should have seen and avoided, will be held guilty of contributory negligence as a matter of law. We have no disposition to question or qualify that rule which has been established by repeated decisions of this and other courts. We think, however, that the duty to look and listen was qualified by the circumstances appearing in this case, and that the failure of deceased to exercise due care for his own safety is not so conclusively established as to justify...