Baltimore & O.R. Co. v. Robertson

• Decision Date: 13 June 1924
• Docket Number: 4007.
• Citation: 300 F. 314
• Parties: BALTIMORE & O.R. CO. v. ROBERTSON. [1]
• Court: U.S. Court of Appeals — Sixth Circuit

300 F. 314

BALTIMORE & O.R. CO. v. ROBERTSON. ^[1]

No. 4007.

United States Court of Appeals, Sixth Circuit.

June 13, 1924

W. T Kinder, of Cleveland, Ohio (Tolles, Hogsett, Ginn & Morley and J. P. Wood, all of Cleveland, Ohio, on the brief), for plaintiff in error.

Luther Day and Edward Davidson, both of Cleveland, Ohio (Day & Day of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON and DONAHUE, Circuit Judges, and TUTTLE, District judge.

TUTTLE District Judge.

This was an action for the recovery of damages alleged to have been sustained by defendant in error (the plaintiff below and hereinafter called plaintiff), while employed by the plaintiff in error (the defendant below, and hereinafter called defendant) as a watchman, as a result of being struck by a passenger train operated by the defendant. Plaintiff is a citizen of Ohio, and defendant is a Maryland corporation engaged in operating a common carrier railroad in interstate commerce. The trial court denied a motion of defendant for a directed verdict, and submitted the case to the jury, which returned a verdict for the plaintiff in a substantial amount. By writ of error, defendant seeks to review the judgment entered on such verdict; the gist of its assignments of error being that the evidence did not warrant the submission to the jury of any of the questions of alleged negligence involved.

It was the claim of plaintiff (and there was evidence tending to support such claim) that on the night on which he received the injuries referred to he was patrolling a certain railroad trestle of the defendant in the performance of his duties as a guard protecting the property of defendant (including such trestle) during a labor strike; that during the period of such employment the defendant, knowing of his necessary presence on such bridge in a place of danger from passing trains, had adopted the customary practice of warning him of the approach of trains by causing the locomotives drawing such trains to whistle just before they came into sight from behind a curve (located 450 feet distant from the trestle) which prevented plaintiff from seeing them until they reached that point that plaintiff knew of such custom, and relied on such whistles as signals to warn him of approaching trains; that on the night in question, while engaged in his duty of patrolling the track of his employer, he approached this trestle (which was 286 feet long) and before going upon it stopped, looked, and listened, but neither saw nor heard any train; that he thereupon proceeded across the bridge in the direction of the curve, walking necessarily in the center of the single track thereon, which occupied nearly its entire width; that when he had gone about two-thirds of the way across he suddenly saw a train, whose engine had not whistled, coming around the curve toward him; that he then ran on toward the curve and approaching train in an attempt to escape from his dangerous position, and nearly succeeded in reaching a place of safety, but that as he left the track near the end of the trestle his foot was caught and became wedged between the outer guard rail and a spike projecting upwardly from the tie, between the guard rail and the steel rail, to a height greater than necessary or usual in bridge construction, and before he could extricate...