Tompkins v. Erie R. Co.

• Decision Date: 07 June 1937
• Docket Number: No. 307.,307.
• Parties: TOMPKINS v. ERIE R. CO.
• Court: U.S. Court of Appeals — Second Circuit

90 F.2d 603 (1937)

TOMPKINS v. ERIE R. CO.

No. 307.

Circuit Court of Appeals, Second Circuit.

June 7, 1937.

Davis, Polk, Wardwell, Gardiner & Reed, of New York City (Theodore Kiendl, Harold W. Bissell, and L. Ray Glass, all of New York City, of counsel), for appellant.

Bernard G. Nemeroff, of New York City (G. Everett Hunt and William G. Walsh, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

SWAN, Circuit Judge.

This action was brought to recover damages for personal injuries sustained by the plaintiff when hit by a moving freight train as he was walking along the defendant's right of way. At the conclusion of the evidence the defendant moved to dismiss for failure of proof of actionable negligence on the part of the defendant and for affirmative proof of contributory negligence on the part of the plaintiff. A denial of this motion is the error chiefly relied upon for reversal of the plaintiff's judgment.

The accident happened about 2:30 a. m. on July 27, 1934, as the plaintiff was proceeding to his home on Hughes street, in Hughestown, Pa. Hughes street is a stubend street ending at the westerly side of the railroad right of way. The next street to the south is Rock street which crosses the single line track at grade. The plaintiff alighted from a friend's automobile at the Rock street crossing and walked along a beaten pathway that runs in a northerly direction adjacent and parallel to the railroad track for about 115 feet, where it intersects a diagonal path leading out of Hughes street and across the track. The defendant's freight train approached from the direction in which the plaintiff was walking. He heard it whistle for the Rock street crossing, saw its headlight as it rounded the curve ahead, and continued to walk toward it. He says it was traveling 30 or 35 miles an hour. The train crew testified to a speed of 8 or 10 miles an hour. The pathway upon which the plaintiff walked is approximately 2 feet wide and runs along about 2 feet from the ends of the ties, although in some places it is less. The locomotive extended more than a foot beyond the ends of the ties and the widest car overhung them one foot and five inches. Tompkins himself testified that the distance between his body and the moving train was between one and two feet. The night was dark and there was no artificial light. When he had almost reached the intersection of the two paths the engine passed him, and just as he got to the intersection "a black object that looked like a door" loomed up in front. Before he could even raise his hands, he was struck on the head and thrown to the ground in such a way that his right arm came under the wheels of the train. He believes the black object to have been a swinging door on a refrigerator car and says it projected from the side of the train two or two and a half feet. There was no witness to the accident other than the plaintiff, but much testimony was introduced with respect to the exact location of the paths, the long period of years during which the residents of Hughestown had been accustomed to use them, and the character of the ground lying between the longitudinal path and the fence marking the west boundary of the railroad right of way.

The defendant contends, citing Falchetti v. Pennsylvania R. Co., 307 Pa. 203, 160 A. 859; Koontz v. Baltimore & O. R. Co., 309 Pa. 122, 163 A. 212, that the only duty owed to the plaintiff was to refrain from willful or wanton injury because the courts of Pennsylvania have so ruled with respect to persons using a customary longitudinal path, as distinguished from a path crossing the track. The plaintiff denies that such is the local law, but we need not go into this matter since the defendant concedes that the great weight of authority in other states is to the contrary. This concession is fatal to its contention, for upon questions of general law the federal courts are free, in absence of a local statute, to exercise their independent judgment as to what the law is; and it is well settled that the question of the responsibility of a railroad for injuries caused by its servants is one of general law. Baltimore & O. Railroad Co. v. Baugh, 149 U.S. 368, 13 S.Ct. 914, 37 L.Ed. 772; Cole v. Pennsylvania R. Co., 43 F.(2d) 953, 71 A.L.R. 1096 (C.C.A. 2), and cases cited therein; Redfield v. New York Cent. R. Co., 83 F.(2d) 62, 65 (C.C. A.8).

Where the public has made open and notorious use of a railroad right of way for a long period of time and without objection, the company owes to persons on such permissive pathway a duty of care in the operation of its trains. Southern Ry. Co. v. Cochran, 29 F.(2d) 206 (C.C.A.5); New York, N. H. & H. R. Co. v. Kmetz, 193 F. 603 (C.C.A.2); Erie R. Co. v. Burke, 214 F. 247 (C.C.A.2); Robbins v. Pennsylvania Co., 245 F. 435, 441 (C.C.A.6); Pennsylvania R. Co. v. Lackner, 246 F. 931 (C. C.A.3); American Law Institute, Torts, § 334. It is likewise generally recognized law that a jury may find that negligence exists toward a pedestrian using a permissive path on the railroad right of way if he is hit by some object projecting from the side of the train. Southern Ry. Co. v. Cochran, 29 F.(2d) 206 (C.C.A.5); Schultz v. Erie R. Co., 46 F.(2d) 285 (C.C.A.3); St. Louis, S. W. Ry. Co. v. Wilcox, 57 Tex. Civ.App. 3, 121 S.W. 588; Missouri, K. & T. Ry. Co. v. Scarborough, 29 Tex.Civ.App. 194, 68 S.W. 196; St. Louis, S. W. Ry. Co. v. Balthrop (Tex.Civ.App.) 167 S.W. 246; Chesapeake & O. Ry. Co. v. Davis, 58 S.W. 698, 22 Ky.Law Rep. 748; Pruitt v. Southern Ry. Co., 167 N.C. 246, 83 S.E. 350; Scott v. Davis, 216 Mo.App. 530, 270 S. W. 433; cf. Louisville & N. R. Co. v. Marlow, 169 Ky. 140, 183 S.W. 470.

Plaintiff's testimony that the black object which struck him looked like a swinging door was sufficient to take to the jury the question whether he was injured in the manner alleged and whether the defendant was negligent in allowing a door to swing, despite the defendant's testimony that an inspection at Ashley showed all car doors to be closed and sealed.

The main contention of the appellant is that the plaintiff's conduct in walking so close to a moving train in the dark constituted contributory negligence as a matter of law. Much testimony was directed to the character of the ground lying between the longitudinal path and the fence, the plaintiff endeavoring to prove that he could not safely have walked outside the beaten path, and the defendant that he could. Witnesses testified that no one ever walked outside the path because the ground slanted away toward the fence and there were ruts in it; but the fact that trucks and automobiles of all sorts were accustomed to pass along the right of way from Rock street to Hughes street proves conclusively that the ground was traversable outside the beaten path, and the photographs show that at the worst it is only a little rough at the spot where Tompkins was struck. The contention that he could not have stepped aside while the train was passing is patently absurd. So the question is reduced to whether he was guilty of contributory negligence as a matter of law in not avoiding all danger by the simple expedient of stepping to...