Norfolk & W. Ry. Co. v. Collingsworth

• Decision Date: 10 May 1929
• Docket Number: No. 5152.,5152.
• Citation: 32 F.2d 561
• Parties: NORFOLK & W. RY. CO. v. COLLINGSWORTH.
• Court: U.S. Court of Appeals — Sixth Circuit

32 F.2d 561 (1929)

NORFOLK & W. RY. CO. v. COLLINGSWORTH.

No. 5152.

Circuit Court of Appeals, Sixth Circuit.

May 10, 1929.

James I. Boulger, of Columbus, Ohio, and Henry Bannon, of Portsmouth, Ohio, for appellant.

R. B. Newcomb, of Cleveland, Ohio (Newcomb, Newcomb & Nord, of Cleveland, Ohio, and Pugh & Pugh, of Columbus, Ohio, on the brief), for appellee.

Before MOORMAN, MACK, and HICKS, Circuit Judges.

HICKS, Circuit Judge.

Collingsworth, a switch oiler, while engaged as such, at about 7:30 p. m., October 15, 1926, in the yards of appellant, was run down and injured by the front of a cut of 11 or 12 box cars being shoved by an engine moving backwardly. He brought this suit to recover for the damages inflicted. Appellant's motion for a directed verdict was denied and the court, clarifying the averments of the petition, submitted the case to the jury upon two allegations of negligence: First, that "the train was moving eastwardly without having a watchman or lookout on the leading car, and without maintaining a light on the forward end of the train, and without giving any warning signal or notice of the train's approach"; and, second, "that the crew by the exercise of ordinary care should have known of the presence of the plaintiff on the track and thus avoided the accident."

We believe the motion for a directed verdict should have been sustained. The suit was brought under and falls within the Federal Employers' Liability Act (Act April 22, 1908, c. 149, § 1, 35 Stat.; title 45, c. 2, § 51, U. S. C. 45 USCA § 51). This act permits a recovery only upon proof of negligence, and we believe that there was no evidence of any lack of due care upon the part of appellant touching any duty it owed to appellee. Appellee's duty was to oil 28 switches. He oiled each switch about three times daily. The accident occurred at the switch located farthest west in the yards. This switch was at the junction of the west-bound main line track and a lead switch track extending eastwardly and parallel with the west-bound main. Other switch tracks branched from the lead switch track and extended eastwardly. The greater part of the switch yard was therefore toward the east. At the point of the accident there were four parallel tracks running east and west. They included the east and west bound main tracks and the lead switch track and one other switch track.

The accident occurred about halfway between a viaduct on the west and a temporary trestle on the east. This viaduct and trestle were parallel with each other and crossed the railroad tracks at right angles and were about 300 feet apart. The trestle was about 50 feet high. At a point about 300 feet east of the switch where appellee was injured, and about 75 or 100 feet east of the trestle, there were flood lights about 25 feet higher than the trestle, fixed on the cross-arms of a pole or tower. These lights were equipped with reflectors. The purpose of the flood lights was, of course, to light the yards; but the intervening trestle cast a shadow upon the switch where appellee was injured, and upon the greater part, if not all, of that portion of the yards between the viaduct and the trestle. However, there were three are lights upon the viaduct. The weather was clear, but on account of the shadow it was, of course, darker at the point of the accident than elsewhere at that hour. A switch engine pulling 11 or 12 box cars approached from the east on the east-bound main track and pulled in on a cross-over toward the west-bound main. Moore, a brakeman, left the cars while on the cross-over, saw and talked to appellee about 100 to 150 feet east of the switch, left appellee there, got on the engine as it moved west, got off at the switch, and after the cars had passed threw the switch for the west-bound main, thus displaying a green light, indicating that the switch was left open for a return of the cars along the west-bound main. The purpose was to take these cars to a point in what was called the "flat yards," where they were to be put into a west-bound train. After the engine and cars had passed on toward the west and through the viaduct, appellee came to the switch and proceeded to oil it. He had a bucket of oil and a brush about 2 or 2½ feet long. He stood between the rails and smeared oil along the side of the rails. He had been unfortunate, in that he had previously suffered the loss of one eye. He had no lantern. While he was thus engaged, the cut of cars pushed by the engine backed eastwardly along the west-bound main. The front car struck appellee on the shoulder, knocked him down, and ran over and seriously injured him. The accident was not seen by any of the train crew.

The uncontroverted evidence is that during such a switching operation the post of duty of the front brakeman is upon the top and about the center of the front box car. The center of the car is chosen rather than the front, to lessen the danger of being thrown off in the event of any sudden jerk or movement of the train. He is equipped with a lantern burning a white light and used as a signal to control the train movement. The brakeman's lantern is not used as a warning to employees upon the track and the brakeman is not charged with any such duty toward such employees. Moore testified: "I have a lantern to give signals with, and know of no other purpose for them."

Just where Moore was located on the cars at the time of the accident is not entirely clear. The weight of the evidence is that he was at the usual place, to wit, about the center of the top of the first car. Appellee admits that he knew his position was dangerous. It was particularly dangerous, in that it was at a switch on the main line. He admits that it was his duty to watch for the trains and to look out for himself; that he knew that the west-bound main track was used in making up and shifting cars in the yard, and that the crew of the train that injured him was a yard crew, and that the cut of...