Canadian Pac. Ry. Co. v. Elliott

• Decision Date: 11 April 1905
• Docket Number: 165.
• Parties: CANADIAN PAC. RY. CO. v. ELLIOTT.
• Court: U.S. Court of Appeals — Second Circuit

137 F. 904

CANADIAN PAC. RY. CO. v. ELLIOTT.

No. 165.

United States Court of Appeals, Second Circuit.

April 11, 1905

F. E Alfred and W. B. C. Stickney, for plaintiff in error.

W. L Burnop, for defendant in error.

Before WALLACE, LACOMBE, and TOWNSEND, Circuit Judges.

LACOMBE Circuit Judge.

Besides the main line, there are at Richford several sidings numbered, respectively, 1, 2, etc. A few minutes prior to the accident a through freight train from Montreal had pulled into the yard. It was necessary to cut some cars out of it. Two cars, which had been in the middle of the freight train were first sent down siding No. 1 in charge of one Sears as rear brakeman. After they were brought to a standstill, he returned to the train, and five cars located just in front of the caboose were cut out and kicked back on the same siding. Sears rode those also, and they came with great force against the other two cars, driving them back a considerable distance. Deceased and a car inspector, Green, had been examining a freight train which had drawn into the yard on the next siding, No. 2. They had finished the job, and were on their way back to the station to await the next job, when they drew near to the rear of the two cars on siding No. 1. Elliott (the deceased) suggested that they should test the 'knuckle'-- a part of the coupling-- of the rear car. Both of the men thereupon stepped in behind the car, where they would be hidden from the view of any one 'riding down' any cares moving towards them on siding No. 1. The testing of the knuckle is an operation very quickly performed, but before they had finished it the five cars struck the two, and, as the latter moved backward under the impact, deceased was knocked down, run over, and killed.

The court left several questions to the jury: First, to determine whether the five cars were properly and prudently controlled in being sent down on the two; second, if they were not so controlled, was that because Sears was not a prudent, proper, efficient, and competent brakeman, such as a prudent man would put in that place? He charged them that the defendant would be liable only if he were short of the proper competency and efficiency as a brakeman; that, if he was a good brakeman, but was at the moment not paying attention, not doing his duty, that would be his fault, and not the fault of the company. The court also left it to the jury to determine whether the deceased was guilty of contributory negligence; to determine what a prudent man would do in view of the whole situation-- the rules as they were understood in the yard, the situation of the switch engine and cars up above the highway crossing, the chance deceased had to look and see if the car was coming, and what he had a right to expect as to how much time would be consumed, assuming that the cars would be run down in the usual way. They were to take him as he stood there, knowing the switching crew was where it was, knowing how long it would take to test the knuckle, knowing that his superior was with him, knowing the rule as it was understood in the yard, and to say whether, taking everything into account, he was lacking in prudence in stepping in behind the car to test the knuckle.

These instructions assumed that the testimony would justify the jury in finding that deceased might disregard the rule referred to, speculating on his chances of escaping injury as a consequence of such disregard. The record does not warrant such a finding. For a considerable time prior to August 10, 1901, the company's book of rules and regulations for the guidance of its employes contained the following:

'Rule 14. When necessary for car inspectors to work under a car, they must protect themselves by attaching to the car a red flag by day or a red light by night. The car thus protected must not be coupled to or moved, until the red signal is removed by the car inspector. When a car standing on a siding is protected by a red signal, other cars must not be placed in front of it, so that the red signal will be obscured, without first notifying the car inspector, so that he may protect himself.'

This rule was in force down to the time of the adoption of rule 26, on August 10, 1901, when rule 26 became a substitute for and superseded rule 14. Rule 26 is as follows:

Rule 26. A blue flag by day and a blue light by night, displayed at one or both ends of a car, engine, or train, indicate that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals, and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track, so as to intercept the view of the blue signals, without first notifying the workmen.'

It is manifest, upon a comparison of the two rules, that the changes introduced by the new are all in the direction of more carefully safeguarding the employes. Engines and trains, as well as cars, may be put under the danger signal. The old rule protected only car inspectors. The new rule covers all workmen, whether their work be inspection or repair. The old rule protected those covered by it only when at work 'under a car.' The new one protects them when 'under or about' a car. Of a rule which required section foremen to carefully flag their truck and hand cars, the Circuit Court of Appeals in the Eighth Circuit, per Caldwell, Circuit Judge, said:

'These rules are reasonable. They are founded on the experience and observation of those who have had the management and operation of railroads from their creation down to the present time. They are essentially for the protection and safety, not only of the property of the company, but of passengers and of the employes of the company, more especially of section foremen and their men. * * * These rules are not incapable of observance; and obedience to them imposes no unnecessary hardship or burden on section foremen or their men, while it protects them from injury. The time of the men required to comply with these rules is the company's. No loss of wages ensues, no matter how much time is taken up in the observance of the rules. It is no loss or hardship to the men, therefore, to require them to obey rules made in great measure for their own protection. * * * Their nonobservance contributed to, if it did not occasion, the accident. The section foreman was clearly guilty of contributory negligence, which precludes a recovery in this case. ' Kansas & A.V.R. Co. v. Dye, 70 F. 24, 16 C.C.A. 604.

'A company being under a duty to make reasonable rules, it needs hardly be said that there no longer exists any question of its right and power to do so; and that a servant, accepting employment with knowledge of such rules, and especially when his attention is directed thereto, is under obligation to fully conform to such rules when and so long as they are really maintained in force, and that a servant or employe failing or refusing to observe such rules takes upon himself the risk of the consequences to such disobedience, and is, as matter of law, guilty of negligence, which defeats his right to hold the master liable for an injury of which such negligence is the proximate cause. ' C.C.A., Sixth Circuit, Lake Erie & W.R.R. v. Craig, 80 F. 488, 25 C.C.A. 585.

See, also, C.C.A., Fourth Circuit, Richmond & D.R. Co. v. Finley, 63 F. 228, 12 C.C.A. 595; C.C.A., Eighth Circuit, per Brewer, Circuit Justice, Atchison, T. & S.F.R. v. Reesman, 60 F. 370, 9 C.C.A. 20, 23 L.R.A. 768.

In the case at bar the failure to display the blue flag at the end of the car nearest to the shunting train must be held to have contributed to the accident. No one can say that, with that danger signal in view, either the conductor who cut them out or Sears, the trainman who rode them down, would nevertheless have brought them into violent contact with the cars thus protected. That deceased knew of the rule is indisputable. He had been working as car inspector for several years, and is chargeable with knowledge of the rules contained in the book furnished to him for his guidance. One of plaintiff's witnesses, Green, the car inspector who, in conjunction with deceased, had just finished the inspection of the train on siding No. 2, testified that Elliott had knowledge of the rules because he had heard him talk about them; that he and Elliott knew of the change of rule, because t...