Blackley v. Powell, 3540.

• Decision Date: 08 January 1934
• Docket Number: No. 3540.,3540.
• Citation: 68 F.2d 457
• Parties: BLACKLEY v. POWELL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

68 F.2d 457 (1934)

BLACKLEY v. POWELL et al.

No. 3540.

Circuit Court of Appeals, Fourth Circuit.

January 8, 1934.

Clyde A. Douglass, of Raleigh, N. C. (Walter R. Jones and J. Chesley Sedberry, both of Rockingham, N. C., on the brief), for appellant.

L. R. Varser, of Lumberton, N. C. (R. A. McIntyre and Ozmer L. Henry, both of Lumberton, N. C., on the brief), for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

This is an action for damages for personal injuries, under the Federal Employers' Liability Act (April 22, 1908, c. 149, 35 Stat. 65, as amended 45 USCA §§ 51-59), originally instituted in the superior court of Richmond county, North Carolina, and properly removed to the District Court. It was brought by appellant, hereinafter called plaintiff, a locomotive engineer, who, while preparing at Andrews, S. C., for a run to Savannah, Ga., fell into an unguarded turntable pit in the Andrews yards at about 2 a. m. on the morning of January 14, 1932. The plaintiff charged negligence on the part of the defendant receivers in failing to maintain adequate lights at the place of the injury, and in placing the engine which plaintiff was first to inspect and then to operate, so near the unguarded pit that plaintiff, in the course of his inspection, unwarily fell into it, sustaining the injuries complained of. At the close of all the evidence, the trial judge directed a verdict for defendants on the ground that the accident was attributable to the conduct of the plaintiff in going into the neighborhood of the pit, of whose existence he must have been aware, without using a torch or light, with which he had been supplied. This appeal presents the single question of the propriety of that direction.

The accident occurred about half a mile from the main track leading from Hamlet, N. C., to Savannah, Ga., at a place where there had formerly been more extensive yards, a roundhouse, railroad shops, and cinder pits. There was also a turntable in this yard, which was operated in connection with the rest of the plant. In 1928, four years before the accident, the roundhouse and shops were torn down and the cinder pits filled in, but the turntable remained and was still used to a certain extent. Before 1928, the yards were well lighted, but with the demolition of the main structures, all the lights had been removed, and at the time of plaintiff's injury, the nearest outdoor light to the turntable was located at a sandhouse 500-600 feet away, and was not strong enough to shed any light near the turntable. The yard at this time consisted simply of two parallel tracks, an office, called the mechanical foreman's office, located in a converted box car to the north of the tracks, a water tank, a coal chute, the sandhouse, and the turntable. The tracks ran east and west, and one of them, called the turntable track, ran onto and through the turntable at the east end of the yard. The other track, 20 feet to the north, was called the storage track. About 250 feet west of the turntable, beside the turntable track, was the water tank, and beyond that, still farther west, the two tracks converged and ran into the main line. It is in this direction that the town of Andrews lies, and an engineer coming out from town for a run would approach the mechanical foreman's office, to which it was his duty to report, from the west. He would also be walking toward the turntable. The office, which is about 40 feet north of the storage track, is only about 100 feet northwest of the turntable at the point where it is intersected by the turntable track. The relative location of objects in the yard was shown by careful measurements made by a civil engineer in the defendants' employ.

At 1:45 a. m. on the morning in question, plaintiff came out of Andrews for duty, reported at the office, and awoke his fireman there. He then proceeded towards his engine, which at about 5 p. m. on the preceding day the fireman had "spotted" or left standing on the turntable track, facing west, and a short distance to the west of the turntable pit. Another engine, spoken of as a "dead" engine, was standing on the storage track, abreast or slightly ahead of the engine plaintiff was to operate. Plaintiff testified that he proceeded behind this engine, reached and entered the cab of his engine, and turned on the dynamo and lights in the cab before beginning his inspection. He then descended from the cab on the left, or fireman's, side and began to inspect the tender. He was supplied with a torchlight for this purpose, but did not use it, using instead a flashlight of his own. He testified that he had inspected the left side of the tender and had crossed to the right side, passing around the end of the drawhead in the rear, and, while inspecting the wheels of the rear truck, at the back corner on the right side of the tender, he inadvertently stepped back and fell into the turntable pit, which he did not know was there. The pit was 4 to 4½ feet deep, and plaintiff, because of his injuries, had to be helped out by the fireman, to whom he called. He testified that when he had gotten out of the pit, he observed that the rear of the tender was only about 3 feet from the edge of the pit and that the drawhead was only 6-10 inches from it. There was no guard or rail around the pit. There is little dispute as to these physical facts, except that the fireman, a defendants' witness, stated he had "spotted" the engine so that the rear of the tender was 15-16 feet from the edge of the pit.

Plaintiff had been in the employ of the railway company since 1895, and had been an engineer for nineteen years. His home was in Hamlet, N. C. He admitted he had been running engines into and out of the Andrews yard for fifteen years, but he claimed he had not been there for quite a while, as, after the changes in the yard, it was not on his regular run except for trips at night, when he would come in one night and leave the next night. On this occasion he had come into Andrews from Savannah on a different engine at about 12:50 the previous night. He testified that he had known of the turntable during...