Central R. Co. of New Jersey v. Colasurdo

• Decision Date: 11 December 1911
• Docket Number: 40.
• Citation: 192 F. 901
• Parties: CENTRAL R. CO. OF NEW JERSEY v. COLASURDO.
• Court: U.S. Court of Appeals — Second Circuit

192 F. 901

CENTRAL R. CO. OF NEW JERSEY v. COLASURDO.

No. 40.

United States Court of Appeals, Second Circuit.

December 11, 1911

De Forest Bros. (Robert Thorne, of counsel), for plaintiff in error.

Thomas J. O'Neill, for defendant in error.

Before LACOMBE, COXE, and WARD, Circuit Judges.

COXE Circuit Judge.

On Christmas Day, 1908, the plaintiff was employed by the defendant as a trackwalker. At about 7 o'clock in the evening, it being then dark, the plaintiff and two other employes were engaged in repairing a switch in the Jersey City yard, the work being in charge of Patrick Nighland, a foreman. Nighland was engaged in making the repairs and the plaintiff and Saldero, the other trackwalker, were assisting him, the plaintiff holding a lantern and Saldero a crowbar. Shortly before the accident a train of four cars arrived at the station, where connection is made with defendant's ferryboats for New York. After having discharged its passengers, it was moved out of the yard and was being 'kicked' back to the station platform in order that it might take a load of passengers, who had arrived from New York, to Somerville, N.J. It had no motive power and was controlled only by its own brakes. There was testimony from which the jury may have found that this train was not lighted and was running at the rate of ten miles an hour in charge of a single brakeman, that no signal or warning of its approach was given and that the brakes were not applied until the train was but six or eight feet distant. There can be no question that the three men, all of them experienced railroad men, were taken by surprise. Nighland was killed, the plaintiff lost his leg and Saldero escaped. If the testimony of the witness Gallagher be true, it seems incredible that some one of the three did not hear his shouts and whistles or see the lights on the platform of the advancing car. The fact that two of the men were run down is persuasive testimony that the car approached them silently and unseen.

We cannot believe that the risk of being injured in this manner while engaged in discharging his duty, was assumed by the plaintiff. He assumed the usual and ordinary risks of the calling, but when ordered to repair a track at night he had a right to assume that some precaution would be taken to guard him against extraordinary danger. If a watchman were not stationed to warn him of the approach of trains, he at least had a right to expect that a train would not back down upon him with no notice of its approach and no attempt to apply the brakes until only eight feet distant.

We have no doubt, if the federal liability act is applicable, that a cause of action was established, for under it contributory negligence ...