Chamberlain v. Pennsylvania R. Co.

• Decision Date: 13 June 1932
• Docket Number: No. 397.,397.
• Citation: 59 F.2d 986
• Parties: CHAMBERLAIN v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Second Circuit

59 F.2d 986 (1932)

CHAMBERLAIN v. PENNSYLVANIA R. CO.

No. 397.

Circuit Court of Appeals, Second Circuit.

June 13, 1932.

Sol Gelb, of New York City, for appellant.

Burlingham Veeder, Fearey, Clark & Hupper, of New York City (Morton L. Fearey, and C. B. M. O'Kelley, both of New York City, of counsel), for appellee.

Before L. HAND, SWAN, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

The deceased was a brakeman employed in interstate commerce, at the time of his death engaged in piloting two gondola cars in the defendant's yard at Morrisville, Pennsylvania, on a misty afternoon, at five o'clock on November third. The operation was of the familiar kind; cars were being assorted by gravity upon tracks in the yard, of which there were a great many. A locomotive pushed a train up an incline, detached the desired number in a string, and let them roll down the other side of the "hump," to be switched to their destination. Each of the strings was ridden by one or more brakemen, whose duty it was to control their speed and prevent collisions. It was conceded that at some point after the deceased's cars had been shunted upon the track where it was to go, he fell from them and was run over by nine cars which followed his own, and which were ridden by three brakemen. He lay between the tracks, and whether his own cars had already also passed over him was not clear. The question is whether he was thrown off through the negligent collision of the following nine, or whether in some unknown way he fell off. In the latter event concededly the case was not proved.

The plaintiff's only witness to the event, one Bainbridge, then employed by the road, stood close to the yardmaster's office, near the "hump." He professed to have paid little attention to what went on, but he did see the deceased riding at the rear of his cars, whose speed when they passed him he took to be about eight or ten miles. Shortly thereafter a second string passed which was shunted into another track and this was followed by the nine, which, according to the plaintiff's theory, collided with the deceased's. After the nine cars had passed at a somewhat greater speed than the deceased's, Bainbridge paid no more attention to either string for a while, but looked again when the deceased, who was still standing in his place, had passed the switch and onto the assorting track where he was bound. At that time his speed had been checked to about three miles, but the speed of the following nine cars had increased. They were just passing the switch, about four or five cars behind the deceased. Bainbridge looked away again and soon heard what he described as a "loud crash," not however an unusual event in a switching yard. Apparently this did not cause him at once to turn, but he did so shortly thereafter, and saw the two strings together, still moving, and the deceased no longer in sight. Later still his attention was attracted by shouts and he went to the spot and saw the deceased between the rails. Until he left to go to the accident, he had stood fifty feet to the north of the track where the accident happened, and about nine hundred feet from where the body was found.

The story is attacked as too uncertain to support a verdict; and it is quite true that the witness's repeated glances are a suspicious circumstance; there seems to have been no reason for his looking first when the nine cars were entering the switch, and again after a crash which did not of itself seem to him unusual. Moreover his testimony is not too clear in itself; we have stated it in its more favorable interpretation. However, all this was a matter for the jury, and assuming they thought him truthful, they might infer that a collision took place. It does not appear to us impossible, or indeed improbable, that one in his position could tell whether the two strings were together. The intervals between cars in a train are uniform; they may be detected by the straight sides. Certainly a gap of four or five car lengths, when the nine cars came to rest, would have been easily observable; and this was the story of the defendant. What Bainbridge saw, coupled with what he had heard, if uncontradicted, would be enough to support a finding that the nine cars had collided with the deceased's and thrown him off. There is no inherent impossibility in the story.

The defendant's version, backed by six or seven of its employees, was that the deceased had fallen off while clambering over his cars from the rear end. The two gondolas, with nobody aboard, made a light contact with a string still moving ahead of them, whose crew, looking backward, saw him lying on the track. The brakeman on the front of the approaching nine cars saw him between the rails, though not in time to check them until they had passed over, and clear of, him. There was however no contact between the gondolas and the nine, which, as we have just said, stopped some four or five car lengths away. Nobody professed to have seen him fall, but if the defendant's witnesses were believed, he must have done so; at least, however he got upon the track, it was not through a collision, and the defendant was not at fault. On this showing the judge thought the evidence of any collision too speculative to support a verdict and took the case from the jury. We have to decide only whether this ruling was right.

Left to ourselves with the bare record we should say that the judge's conclusion was supported by a very strong balance of probability. Not only was the testimony of Bainbridge somewhat...