Connelley v. Pennsylvania R. Co.

• Decision Date: 09 December 1915
• Docket Number: 1988.
• Parties: CONNELLEY v. PENNSYLVANIA R. CO.
• Court: U.S. Court of Appeals — Third Circuit

228 F. 322

CONNELLEY v. PENNSYLVANIA R. CO.

No. 1988.

United States Court of Appeals, Third Circuit.

December 9, 1915

A railroad company held not chargeable with negligence which renders it liable for the killing of a track-walker.

Francis Rawle and Joseph W. Henderson, both of Philadelphia, Pa., for plaintiff in error.

John Hampton Barnes, of Philadelphia, Pa., for defendant in error.

Before BUFFINGTON, McPHERSON, and WOOLLEY, Circuit Judges.

BUFFINGTON Circuit Judge.

In the court below, Mrs. Ellen Connelley, administratrix of Thomas Connelley, brought suit against the Pennsylvania Railroad Company. Her cause of action was for damages alleged to have accrued to her by virtue of the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp St. 1913, Secs. 8657-8665)), through the negligence of said railroad in causing the death of Thomas Connelley, her husband and its employe. She recovered a verdict and judgment in that court. On writ of error sued out by the railroad, this court, in an opinion reported at 201 F. 54, 119 C.C.A. 392, 47 L.R.A.(N.S.) 867, reversed the judgment recovered by Mrs Connelley. Reference to that opinion avoids needless repetition of the facts. The question involved in that writ and in the present one was whether the proofs showed any negligence on the part of the railroad which constrained submission of the question of negligence to the jury. It was there in substance held there was no such proof; that a railroad trackwalker employed to walk over, watch, and repair tracks where there is a constant passing of trains necessarily assumes the risk of being struck by trains properly operated; and that no negligence on the part of the railroad was shown by the proofs in the case; and that plaintiff was not entitled to recover. Thereupon plaintiff petitioned the Supreme Court for a writ of certiorari, and that court (in pursuance of a stipulation filed, see 231 U.S. 764, 34 Sup.Ct. 327, 58 L.Ed. 472), but without any expression on the merits of the case, reversed the judgment of this court and remanded the cause for retrial in the court below. On such retrial the only testimony give was the viva voce testimony of three witnesses who had been called at the former trial, viz., Mrs. Ellen Connelley, the widow of the decedent, John J. Fredericks, and Harry Hurst, and the reading of the testimony, at the former trial, of William Rowan who had since died. Neither Mrs. Connelley nor Hurst was present at the accident, and Fredericks, while present on the train which struck the decedent, did not see him struck or before he was struck. The proof as to the accident itself was confined to the rereading of the testimony of William Rowan, who was the only witness. Thereupon the trial judge gave binding instructions in favor of the defendant. The plaintiff then sued out the present writ. We see nothing in the account of the accident itself, in the surroundings of the accident as testified to by Fredericks, or in the testimony of Hurst in reference to the rules, which changes the aspect of this case from what it was when heretofore before this court, or which leads this court to differ from the views expressed on the merits of the case in its previous opinion. We restrict ourselves, therefore, to restating that part of our former opinion which summarizes such views, viz.:

'It is an obvious fact that many occupations, as for example a powder mill operator, a structural iron worker, a diver, a blaster, a trackwalker, necessarily subject those who follow them to great dangers. When therefore a man contracts for such employment, he knows and takes on himself the risks and dangers incident to such dangerous work. His assumption of those obvious and unavoidable risks is in the very nature of things part of his employment. It follows therefore that the employer violates no legal duty to the employe in failing to protect him from dangers which cannot be escaped by any one doing such work. Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 F. 298, 37 C.C.A. 499, 48 L.R.A. 68.

'It is obvious that, even where a railroad operates its trains and moves its switch drafts in a proper and careful manner trackwalkers and repairmen are necessarily subjected to great risks. Their very occupation is one of constant peril. Indeed, it follows from the nature of such employment...