Boldt v. Pennsylvania R. Co.

• Decision Date: 10 November 1914
• Docket Number: 45.
• Citation: 218 F. 367
• Parties: BOLDT v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Second Circuit

218 F. 367

BOLDT v. PENNSYLVANIA R. CO.

No. 45.

United States Court of Appeals, Second Circuit.

November 10, 1914

H. A Adams, for defendant in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

LACOMBE Circuit Judge.

The only point raised on this writ of error which calls for any discussion is the exception to a request to charge that:

'The risk the employe now assumes, since the passage of the federal Employers' Liability Act, is the ordinary dangers incident to his employment, which does not now include the assumption of risk incident to the negligence of defendant's officers, agents, or employes.'

Deceased was a yard conductor. He was at work in what is known as a 'gravity yard,' in which cars are pushed up to the crest of a hump and are then allowed to run down, singly or in groups, under the control of a brakeman, into a fan-shaped arrangement of tracks intended for the making up of trains. He was at work on a car on track 4, one of a group of five cars forming one end of a train to be made up. Some additional cars to be attached to these had been brought down into contact, but the two sections failed to couple. These cars were then drawn off 20 to 30 feet, and deceased and an assistant superintendent went to examine and overhaul the coupler. While thus engaged another group of cars came over the hump and ran down on track 4, striking the head group and driving them down over deceased.

The charges of fault were twofold; negligence in failing to promulgate a rule which would require a lookout to be posted to ward off approaching cars, and negligence in operating its cars so as to come down on standing cars with force sufficient to drive them on. Defendant had promulgated a rule, which reads:

'Rule 180. Employes must not go between or under cars in a train until some other member of the crew is made aware of the fact and the latter takes the necessary precautions to prevent the train from being moved while the employe is between or under the cars.'

The testimony abundantly sustains the conclusion that deceased violated this rule. His violation of the rule, however, is important only on the question of contributory negligence, which under the federal act would require merely an apportionment of damages, if defendant were also found negligent. The court so instructed the jury.

The court left it to the jury to say whether or not rule 180 was a sufficient rule to adopt, telling...