Davis v. Philadelphia & R. Ry. Co., 1244.

• Decision Date: 01 January 1921
• Docket Number: 1244.
• Citation: 276 F. 187
• Parties: DAVIS v. PHILADELPHIA & R. RY. CO.
• Court: U.S. District Court — Middle District of Pennsylvania

276 F. 187

DAVIS v. PHILADELPHIA & R. RY. CO.

No. 1244.

United States District Court, M.D. Pennsylvania.

March Term, 1921

John R Geyer, of Harrisburg, Pa., for plaintiff.

John T Brady, of Harrisburg, Pa., for defendant.

WITMER District Judge.

This action was brought by the administratrix of a deceased employee of the Philadelphia & Reading Railway Company under the federal Employers' Liability Act (Comp. St. Secs 8657-8665), averring that the defendant was engaged in interstate commerce, and that plaintiff's deceased, Earl F. Davis, was employed by it, and was also engaged in that business at the time of the injuries received, which resulted in his death. Defendant is charged with the want of exercising due care on the part of its employees in charge of the train that killed Davis in this particular, that the train on the occasion was run at a high rate of speed without keeping proper lookout on its track ahead of it, and without giving any notice or warning of any kind of its approach, although Davis was within plain view of the operator in charge of such train.

Davis was a trackwalker on the main line of the defendant company, connecting Harrisburg and Reading, Pa., and as such was on the day of the accident at work near Hershey Station in Dauphin county, more particularly described as a short distance east of Derry Church grade crossing. At this point the main line consists of three tracks; two east-bound and one west-bound. Upon the outer of the east-bound tracks (No. 4) slow trains are moving; the other track (No. 2) being used for fast or passenger train travel. In the course of his employment, Davis discovered that a certain plate connected with a rail in the east-bound track required repair, and was returning from the toolhouse with the necessary tools to make such repair. After leaving the toolhouse, located to the south of the track at the crossing, he traveled diagonally across track 4, going east upon such, and then proceeded in the same direction on track 2. While proceeding eastwardly, a freight train came from the west on the east-bound No. 4 track, and, while this train was on the crossing, an engine and caboose running at about 35 miles an hour overtook and struck him on the middle east-bound track about 585 feet from the crossing, killing him almost instantly.

It was shown that from the direction the train was moving to the point where he was struck there was a straight stretch of track to at least a distance of 2,200 feet, for which distance he was in plain view of those in charge of the train, and could have been seen had they looked ahead and observed. In the failure to do so, and to give proper notice or warning, lies the negligence imputed to the defendant.

The only witness to the occurrence was the crossing watchman, who says that while he (witness) was at the watch box located at the crossing on the south side of the track, Davis came and got a bar, wrench, angle plate, and hammer, and started out, going east, cutting catty-cornered on No. 4 track across to No. 2, walking ordinary gait down this track about 195 steps, or 585 feet, from the crossing to where he was struck. Witness says he was at the watch box controlling the crossing. Being asked:

'Q. What was the next you saw or heard? A. The next I saw-- I seen a train coming down on track 4, and got out on the crossing to keep anybody from crossing.

'Q. That was not the train that struck him? A. No, sir.

'Q. And then what did you see? A. After that the fellow was over the crossing while 1700 came around the corner.

'Q. You mean after the train had gone over the crossing? A. Yes, sir.

'Q. You mean the train? A. About the center of the train when I saw him.

'Q. Then you saw 1700 coming around the corner? A. Yes.

'Q. Near the corner at the west? A. Yes.

'Q. What was 1700-- a full train? A. No, sir; just engine and caboose.

'Q. And at what rate of speed was he coming? A. Probably 35 miles an hour.

'Q. On what track? A. No. 2.

'Q. And going in what direction? A. East.

'Q. What did he do? A. Didn't do nothing. Didn't make any kind of sign as I heard of.

'Q. No whistle or bell? A. Not that I heard.

'Q. And you were watching the crossing? A. Yes.

'Q. And then what did you do when he passed you that way? A. I signaled the fireman to whistle. I pointed ahead that there was a man walking.

'Q. He could not see the man ahead walking? A. Yes.

'Q. Which side of the engine was the fireman? A. Left side.

'Q. On your side? A. Yes.

'Q. What did the engineer do when you motioned him and called for him to whistle that there was a man on the track? A. You mean to say the fireman. He went for the automatic brake to stop it.

'Q. What did you see next? A. I seen him-- that is all. I seen a man flying out on the side of the track.'

The witness was quite deaf and on cross-examination regarding whether the engineer gave the accustomed crossing signal, he replied, on being interrogated:

'Do you remember shortly after the accident, when he called to see you to get a report about this accident, that you then said you could not tell whether the engine whistled or not? A. That is what I said; yes, sir.

'Q. You do not know whether it whistled or not? A. No, sir.

'Q. (by Mr. Geyer). Did you hear it whistle? A. No, I did not hear it.

'Q. Did you hear any bell, or warning of any kind? A. No, sir.'

The witness testified that he was on the north side of the track, and the engine that struck Davis was on track 2 between the train on track 4 and the witness. He admitted that there was considerable noise from the movement of the train on track 4, and more from the engine and caboose on track 2.

The question presented by this motion to take off the compulsory nonsuit entered on closing plaintiff's case is whether the evidence offered warranted submission of the case to the jury. The evidence is clear, and plainly discloses that there was nothing unusual in the operation of the train that injured Davis. There was no violation of a statutory requirement, nor was there failure of compliance with any orders or recognized custom or rule adopted for the safety and protection of employees. Thus, in the absence of evidence showing that those in charge of the engine were aware of Davis' presence on the track where he was injured, or, having discovered him, recklessly ran him down, they should not be held guilty of negligence. To hold the contrary would indeed unreasonably burden those charged with the grave and responsible duty of operating the instruments of conveyance by rail. It would remove the entire responsibility of caring for the safety of those employed upon the track, and place it upon the shoulders of those having to do with the operation of the engine and train, involving attention to signals of every degree of importance, and entirely relieve those who have nothing but their own safety at stake. Nor could it be held that, notwithstanding, the risk was assumed, since in order to constitute negligence such conduct must be regarded as unusual, and consequently not assumed, though it has been held 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 or ordinarily operated. Connelley v.

Pennsylvania R. Co., 228 F. 322, 142 C.C.A. 614. In delivering the opinion, Circuit Judge Buffington said:

'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 his employee 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 that the duty of self-preservation has to rest on them, for no adequate protection, the duty of self-preservation has to rest on them, for no adequate protection, other than self-protection, can be afforded them. And such has been the reasonable holding of the law. Thus in Norfolk & W. Ry. Co. v. Gesswine, 144 F. 56, 75 C.C.A. 214, it was said: 'This man was one of a number of men who were employed as section men on the railroad. They were engaged in repairing the track, taking out rails, putting in new ones, taking out crossties and putting in new ones, and hewing them into proper form and shape, and were working on the railroad track, while the trains were being operated in the usual way; manifestly, a place of danger. A railroad does not suspend the operations of its trains until the track can be put in order, and the proposition to these sectionmen was, 'We will run the trains and operate the road as heretofore, as we ordinarily do, and...