9 F.2d 858 (3rd Cir. 1925), 3320, Philadelphia & R. Ry. Co. v. Bartsch

Docket Nº:3320.
Citation:9 F.2d 858
Case Date:December 29, 1925
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 858

9 F.2d 858 (3rd Cir. 1925)




No. 3320.

United States Court of Appeals, Third Circuit.

December 29, 1925

Page 859

Edward L. Katzenbach and Louis Rudner, both of Trenton, N.J., for plaintiff in error.

Ralph W. Botham, of New York City (Wilbur A. Heisley, of Newark, N.J., of counsel), for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY, Circuit Judge.

This suit was brought under the Federal Employers' Liability Act (35 Stat. 65; Comp. St. Secs. 8657-8665), to recover damages for the loss sustained by the widow and children of John J. Bartsch arising from his death when in the employ of the Philadelphia & Reading Railway Company. The plaintiff had a verdict and the case is here on the defendant's writ of error. As the judgment must be reversed, we shall address our discussion to those matters in which error was involved at the first trial and which, inevitably, will arise and call for rulings by the court at the next trial.

The railroad yards at Reading, Pennsylvania, form a triangle. Olney Street Yard, Windsor Street and Fifth Street Yard are its points. Freight trains bound for the Fifth Street Yard pull out of the Olney Street Yard and proceed in a northerly direction to Windsor Street where there is a Hall signal-- an overhead signal system. There they stop and await signals. On their next movement they draw forward a little and then back in a westerly direction on a crossover track to the Fifth Street Yard, thus traversing two sides and touching the three points of the triangle. The Olney Street and Fifth Street Yards are connected by a platform intersected by tracks. The distance from one yard to the other along the platform-- the base of the triangle-- is between six and seven hundred feet. By walking over the platform a man may cross in about three minutes but the described train movement along the other two sides of the triangle takes about fifteen minutes.

On the day in question a draft of twenty-six loaded cars pulled out of the Olney Street Yard bound for the Fifth Street Yard, there to be broken up and classified. The draft was drawn by two engines: No. 1149 and No. 1458. It was in charge of the crew attached to the former; Bartsch was a brakeman of the crew attached to the latter. Though a member of this crew, his principal duty was at the Olney Street Yard and consisted in checking up the yard and reporting traffic room to the yardmaster. The draft stopped at the Hall signal. It then pulled ahead preliminary to its...

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