90 F.2d 603 (2nd Cir. 1937), 307, Tompkins v. Erie R. Co.

Docket Nº:307.
Citation:90 F.2d 603
Party Name:TOMPKINS v. ERIE R. CO.
Case Date:June 07, 1937
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 603

90 F.2d 603 (2nd Cir. 1937)

TOMPKINS

v.

ERIE R. CO.

No. 307.

United States 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 plaintiffS 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 stub-end 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

Page 604

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 34 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.

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