Canadian Pac. Ry. Co. v. Thompson

• Decision Date: 28 April 1916
• Docket Number: 1171.
• Citation: 232 F. 353
• Parties: CANADIAN PAC. RY. CO. v. THOMPSON.
• Court: U.S. Court of Appeals — First Circuit

232 F. 353

CANADIAN PAC. RY. CO. v. THOMPSON.

No. 1171.

United States Court of Appeals, First Circuit.

April 28, 1916

E. C Ryder, of Bangor, Me. (Ryder & Simpson, of Bangor, Me., on the brief), for plaintiff in error.

Raymond Fellows, of Bangor, Me. (J. A. Cahners, Oscar F. Fellows, and Fellows & Fellows, all of Bangor, Me., on the brief), for defendant in error.

Before PUTNAM and DODGE, of Circuit Judges, and ALDRICH, District judge.

PUTNAM Circuit Judge.

It is the view of the court that the judgment in this case in the District Court, in favor of the original plaintiff, should be affirmed. Suit was brought under the Employers' Liability Act, and the circumstances are told by the defendant in error, the original plaintiff, as follows:

'This is an action brought by Barbara Thompson, administratrix under the Employers' Liability Act of April 22, 1908 in the District Court of the United States for the District of Maine, to recover damages for the negligent killing of Edgar E. Thompson, a brakeman in the employ of the Canadian Pacific Railway, on November 24, 1913, near Greenville Junction, Me., on the main track running between the state of Maine and the Dominion of Canada. The jury found for the plaintiff, defendant in error, in the sum of $5,000.

'Edgar E. Thompson, the intestate of plaintiff, defendant in error, was 27 years old at the time of his death, a man of good health, earning $3.25 a day, the sole support of the widow, Barbara Thompson, for whose benefit this action was brought. He had been employed by the Canadian Pacific Railway nine years as conductor and brakeman, running on trains between Brownville, within the state of Maine, to Megantic and McAdam Junction, in the Dominion of Canada.

'On the morning of Monday, November 24, 1913, he was a member of the train crew engaged in track work; train of the company consisting of engine, caboose, rail loader, and two empty flat cars. The testimony of Kenneth McLeod, track foreman, who had charge of the rail loader, was that he covered the territory from Greenville Junction, Me., to Megantic, Dominion of Canada; that the crew, of which the deceased was one member, started to load the 'four-spot' rails, so called, for the purpose of clearing the track and roadbed, and to transport and distribute these rails along the main track between Brownville Junction and Holeb, some 30 to 40 miles, where these 'four-spot' rails were to be put onto rail racks for the repair of the main track. It appears that, at the scene of the accident, new rails had been put into the track. The old rails had been removed, and this crew, engaged in loading rails, was picking out from these rails that had been removed the best grade of rails, or, as they were called, ' four-spot' rails, to be used in the repair of the track, between Maine and Canada. The rails which were being loaded onto this flat car were scattered along on the roadbed and beside the track. These rails, which were picked up on the morning of November 24th, were distributed, under the direction of Mr. McLeod, to be used in the repair of this international track, wherever and whenever it became necessary to replace worn or broken rails.'

Also it appears:

'The train was operating on Monday morning, November 24th, on the main international line, and between Squaw Brook and Greenville Junction, in the state of Maine. The work was interrupted three different times, because this work train had to take side tracks in order to clear through passenger and freight trains. Mr. Thompson, the deceased, was in charge of the train when it was loading the 'four-spot' rails, in that he had charge of giving the signals to move the train back and forth opposite the particular rails to be loaded. At the instant of the accident one car had been loaded with the rails, and the train crew was carrying this car of rails to Greenville, to be there set on a side track on its way to the distributing points of the rails. The train was backing. The empty flat car was therefore the front end of the train. The intestate was standing, as his duties required him to stand, on this empty flat car. The train was proceeding at a speed of about 10 miles an hour. As this empty flat car reached a high and narrow cut at the point of a sharp curve in the track, it struck a hand car on the track. The crew of the hand car had given no warning by stationing a man ahead, as required by the rules. Before the flat car struck the hand car, Thompson gave the signal to stop. The brakes were applied, but the train had sufficient momentum, so that the hand car was demolished and the flat car was derailed, and...