Cruzan v. New York C. & H.R.R. Co.

• Decision Date: 02 July 1917
• Citation: 227 Mass. 594,116 N.E. 879
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: CRUZAN v. NEW YORK C. & H. R. R. CO.

227 Mass. 594

116 N.E. 879

CRUZAN

v.NEW YORK C. & H. R. R. CO.

Supreme Judicial Court of Massachusetts, Suffolk.

July 2, 1917.

Exceptions from Superior Court, Suffolk County; Frederic H. Chase, Judge.

Action by Minerva B. Cruzan, administratrix, against the New York Central & Hudson River Railroad Company. Verdict for plaintiff, and defendant brings exceptions. Judgment ordered for defendant.Jas. J. McCarthy and Thos. C. O'Brien, both of Boston, for plaintiff.

G. L. Mayberry and L. A. Mayberry, both of Boston, for defendant.

RUGG, C. J.

This is an action of tort under the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657-8665]) to recover damages for the death of Leon L. Cruzan for the benefit of his widow and two minor children. The circumstances of his injury were these: He was acting as ‘head-end’ brakeman on a freight train about 1,200 feet long on the main east-bound or southerly of the two main tracks of the defendant, which had been ordered to back upon a siding southerly of the track it was on at Brookfield, in order to let a faster following train pass it. The conductor at the rear of the train set the switch so that the freight train could go upon the siding and gave a signal to the deceased standing upon the top of about the fourth car from the locomotive, whose duty it was to give the ‘back up’ signal to the engineer, then to get on the ground and set the switch of the siding after his train had passed wholly onto the siding, so that the main line track would be clear for the fast train following. His train began backing onto the siding at a rate of about 5 or 6 miles an hour. He came down a ladder on the northerly side of the car and while doing this was struck by the locomotive of a regular passenger express train moving at the rate or about 60 miles an hour westerly on the northerly of the two main tracks, and was fatally injured.

There was an overhead bridge under which the freight was backing, the deceased was facing to the rear of his train and not looking in the direction from which the fast passenger express train was approaching. There was evidence tending to show that the position of the deceased, when struck, was part way down the side of a car, which had not quite reached the switch, standing out from the car with his left foot in the stirrup in the side of the ladder and holding onto a rung of the ladder with his left hand, in a stooping postition with his knees bent, and was about to jump off onto the ground.

A rule of the defendant was that:

‘Employés are warned that * * * trains may run on any track in either direction without notice. * * * Employés must be governed accordingly, and exercise proper care to avoid being injured.’

There was evidence tending to show that the track was substantially straight for about 1,200 feet east from the bridge and in plain view from the locomotive of the express train.

This action is brought under the federal Employers' Liability Act. That act in the field covered by it supersedes all state statutes. Corbett v. B. & M. R. R., 219 Mass. 351, 107 N. E. 60, where it is printed in full. By section 2 (Comp. St. 1916, § 8658) the interstate carrier is liable for the injury or death of its employé occurring while engaged in interstate commerce and ‘resulting in whole or in part from the negligence of any of’ its employés. The only negligence alleged in the case at bar is that of the fireman and engineer of the passenger express train. We are of opinion that there is no evidence of negligence on the part of either. There is nothing to indicate that it was their duty to be observant of the movementsof brakemen upon other trains in the position in which Cruzan was. The only rule pertinent in this connection was this:

‘Firemen and Helpers. * * * They must keep a constant lookout ahead (except as to firemen when engaged in firing) and give instant notice to the engineman or motorman of any danger signals or obstructions on the track.’

It is manifest that this rule relates only to the safety of the train on which they are at work. It imposes no duty to be on the watch for other employés on other tracks and trains. The duty of exercising care for their own safety was placed by explicit rule upon such other employés....