Copeland v. Hines

• Decision Date: 07 December 1920
• Docket Number: 3431.
• Citation: 269 F. 361
• Parties: COPELAND v. HINES, Director General of Railroads.
• Court: U.S. Court of Appeals — Sixth Circuit

269 F. 361

COPELAND v. HINES, Director General of Railroads.

No. 3431.

United States Court of Appeals, Sixth Circuit.

December 7, 1920

Luther Day, of Cleveland, Ohio (Robert H. Dawson and Day, Day &amp Wilkin, all of Cleveland, Ohio, on the brief), for plaintiff in error.

Thomas M. Kirby, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

A freight train became stalled on the east-bound main track of the Pennsylvania Railroad. The automatic block signal system was in use and was in effective operation. One of these signals, which we may call No. 1, was about 300 feet west of the rear of the stalled train. The next one, which we identify as No. 2, was 4,500 feet farther west. According to this system, when an east-bound train passed No. 2, and while it remained in the block between No. 2 and No. 1, No. 2 showed a red light. As the train left the block and entered on the next block east, No. 1 showed a red light, and No. 2 changed from red to yellow, and would continue yellow so long as any part of the train was in the block adjacent on the east to No. 1. When that block also became unoccupied, the light at No. 2 would change from yellow to white. It was the duty of the engineer on any following train, when he passed the yellow signal to reduce speed and bring his train under control, and this meant, the witnesses say, to reduce to a speed of from 5 to 10 miles an hour. If, then, this engineer at a subsequent block got the red signal, he must stop until the light again became yellow or white. There was also a rule and practice which, when a train stopped upon the main track required the flagman to go back far enough to protect his train and be prepared to give his stop signal to any following engineer. The testimony tended to show that this rule and practice were rightly subject to the interpretation that 'far enough to protect his train' meant about 40 car lengths, or 1,600 feet.

The stalled train sent for help, which soon arrived in the shape of a light train, consisting of engine and caboose, coming from the west. It coupled onto the rear of the other train and prepared to help. Pursuant to the rule and practice, the light train sent a flagman back. In his progress west, he had reached a point about 800 feet from his own caboose when he saw another train approaching. It was close to him before it was visible, because of the extreme fogginess prevailing, but with his red and white lights he gave the prescribed stop signal. This train was a special fast freight, running about 35 miles an hour, and it is undisputed that it passed the yellow block at No. 2, and passed the brakeman's stop signal, and passed the red block at No. 1, all at full speed and without any attention to the signals. It crashed into the standing train, and the engineer, who thus had not seen or had disregarded all signals, was killed. His representatives brought this action in the court below, under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665). His negligence is not denied, but it is the theory of the action that his personal negligence and the negligence of the railroad in not giving the flagman's stop signal farther west cooperated, whereby each became a proximate contributing cause, in which event, as specified in the act, and as pointed out by the Supreme Court in Norfolk Co. v Earnest, 229 U.S. 114, 33 Sup.Ct. 654, 57 L.Ed. 1096, Ann. Cas. 1914C, 172, and as applied by this court in Pennsylvania Co. v. Cole, 214 F. 948, 131 C.C.A. 244, and by the Supreme Court in Union Pacific v. Hadley, 246 U.S. 330, 38 Sup.Ct. 318, 62 L.Ed. 751, his representatives would be entitled to recover a proportionate part of the damages.

The trial court directed a verdict for the defendant. Clearly, the case should have been given to the jury, if there was substantial evidence indicating that there was negligence by the railroad in the matter of the flagman's signal and that such negligence was a proximate contributing cause of the disaster. The critical question is, therefore, as to the existence of such evidence on each of these points.

We may observe, in a preliminary way, that the action of the trial judge in directing a verdict and in refusing a new trial is not wholly without importance. We have often pointed out (e.g., Louisville Co. v. Lankford, 209 F. 321, 325, 126 C.C.A. 247) that the manner of witnesses, their emphasis, etc., may give the case a color not perfectly reflected in the printed record, and that, when the trial judge sent the case to the jury and refused a new trial after a verdict for the plaintiff, the reviewing court must be especially cautious in concluding that there was nothing sufficient to justify that course. The converse must be true. Where the conclusions of the trial judge have been what they are upon this record, the reviewing court may safely assume that the plaintiff's case was not helped out by an impressive atmosphere not shown in the transcript. Patton v. Railway Co., 179 U.S. 658, 660, 21 Sup.Ct. 275, 45 L.Ed. 361.

We assume upon this record that due diligence required the flagman to go back 1,600 feet, if he could, and there establish his signal post, and that his failure to do so, if he had been able, might...