Central Vermont Ry. v. Sullivan
| Decision Date | 05 November 1936 |
| Docket Number | No. 3166.,3166. |
| Parties | CENTRAL VERMONT RY., Inc., v. SULLIVAN. |
| Court | U.S. Court of Appeals — First Circuit |
George W. Howe, of Boston, Mass. (J. Thomason Phelps, of Boston, Mass., on the brief), for appellant.
William A. O'Hearn (of Getman & O'Hearn), of North Adams, Mass., for appellee.
Before BINGHAM, WILSON, and MORTON, Circuit Judges.
This is an action under the Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65, Act of April 5, 1910, c. 143, 36 Stat. 291 (45 U.S.C.A. §§ 51-59), to recover damages for injury and death of the plaintiff's intestate, Patrick Sullivan. The plaintiff is his widow and the duly appointed administratrix of his estate.
At the close of all the evidence the defendant moved for a directed verdict. The District Court did not then pass upon the motion, but specifically reserved the right to do so after the submission of the case to the jury and the return of a verdict. A verdict for the plaintiff having been returned, the court denied the motion and entered judgment on the verdict, from which this appeal was taken. See Baltimore & Carolina Line v. Redman, 295 U. S. 654, 55 S.Ct. 890, 79 L.Ed. 1636.
Patrick Sullivan, at the time of the accident on April 5, 1934, was employed by the defendant as a section foreman, and his injuries and death occurred in interstate commerce.
The section of the track for which Sullivan was responsible as foreman was a single track and ran northerly from one-half mile north of Palmer Station, Mass., to one-half mile north of Barretts Junction, Mass., a total distance of 4½ miles. He had been employed by the defendant on this section since 1909. He was 67 years old, in good health, and his eyesight and hearing were good.
One and one-half miles north of Palmer Station on Sullivan's section was a bridge over the Quaboag river, known as Burleigh bridge. This was an open bridge or trestle 160 feet long and 12 feet wide. The bridge consisted of railroad ties laid on a steel foundation supported by piers and abutments. Two wooden timbers, 6 by 8, known as stringers, ran the length of the bridge on its surface, one on either side, and the distance from the outside of one stringer to the outside of the other was 11 feet and 2 inches, the inside measurement being 9 feet and 10 inches. The approximate width over all of a freight train is 8 feet and 6 inches.
Beginning at a point 796 feet south of and continuing to the bridge, there is a 6-degree curve in the track to the left, and the grade is slightly rising from a point beginning 600 feet south of the southerly end of the bridge.
At 7 o'clock on the morning of April 5, 1934, Sullivan and his son, who was also one of the section crew, went to Barretts Junction, where the defendant's train dispatcher at New London was called on the phone and they were given the line up for the day. The line up, so-called, was a list of trains that, as then known, would be passing over Sullivan's section on that day. From this they learned that Pickup Extra 472, the train that caused the death of Sullivan, was called to leave Palmer at 8 o'clock that morning. A short wait was made at Barretts Junction for another train to pass, and father and son then took a handcar to Three Rivers, north of the bridge, picked up another section hand, and continued south to near the north end of the bridge where the third man was let off. The other two took the car over the bridge and placed it on a switch about 700 feet south of the bridge. Sullivan told his son he was going to inspect his track and started walking south along the track toward Palmer and the point where his section began, the son going back to work with the other section hand north of the bridge.
It was one of the duties of Sullivan to walk the track, including that running over bridges and trestles, along his entire section once each day and examine it. He did not have and was not required to have any regular time for this inspection or to begin the inspection at any regular place, but could and did inspect the track at such times and places as were convenient to him.
He was in the vicinity of the railroad track from the time he left Barretts Junction at about 7 o'clock until he was hit. He must have known that Extra 472 had not passed but was liable to come from the south at any time after 8 o'clock. A person standing on the south end of the bridge, looking south, could see the engine of a train approaching from the south for a distance of 2,066 feet and, if standing on the bridge 46 feet north of its south end, he could see such a train for a distance of 2,112 feet.
At the time of the accident Extra 472 approached the bridge running at about 30 miles an hour. A train running 30 miles an hour would go about 44 feet a second and it would take about three-fourths of a minute for it to travel from a point 2,066 feet south of the bridge to the bridge. A man walking at the rate of 4 miles an hour would go 270 feet in three-fourths of a minute. This would have given Sullivan ample time to have reached a place of safety if he had seen the train at the point mentioned. If, when being 46 feet upon the bridge, he had seen the train at a point over 300 feet south of the bridge, he would have had seven seconds to retrace his steps and been off the track at the south end of the bridge by the time the train reached there, and would have done this walking only at the rate of 4 miles an hour. If he had hastened his footsteps, he would have been well out of danger.
It thus appears that Sullivan was in no unusually hazardous position which would require the railroad to exercise extra precaution, if they had known he was likely to be there, which they did not.
Was there anything unusual in connection with the running of 472 that morning requiring such precautions on the part of those in the engine of 472?
Extra 472, called to leave Palmer at 8 a. m. — that is, as near 8 as possible — did not leave until after another train, passenger train No. 1, going north, left there at 8:40. It approached the bridge with the engineer, fireman, and head brakeman riding in the engine and hit Sullivan when he was about 46 feet north of the south end of the bridge. It does not appear that the speed (30 miles an hour) was unusual or that the train was being operated in any unusual way.
Evidence was introduced as to the activities of the train crew, train dispatcher, and operators at certain stations and the clearance of trains from the station at Palmer, as to which the plaintiff claims that several rules of the railroad were broken. One of the rules alleged to have been broken and claimed to bear upon the negligence of the road in failing in its duty towards the deceased was rule 91, reading in part as follows:
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