Davis v. Shirer

• Decision Date: 13 April 1923
• Docket Number: 2026.
• Citation: 288 F. 293
• Parties: DAVIS, Agent, v. SHIRER.
• Court: U.S. Court of Appeals — Fourth Circuit

288 F. 293

DAVIS, Agent, v. SHIRER.

No. 2026.

United States Court of Appeals, Fourth Circuit.

April 13, 1923

Nath. B. Barnwell, of Charleston, S.C. (Whaley, Barnwell &amp Grimball, of Charleston, S.C., on the brief), for plaintiff in error.

John I Cosgrove, of Charleston, S.C. (Logan & Grace, of Charleston S.C., on the brief), for defendant in error.

Before WOODS and WADDILL, Circuit Judges, and ROSE, then District judge.

ROSE Circuit Judge.

The parties will be here referred to as they were below, where the defendant in error was the plaintiff and the plaintiff in error the defendant.

The plaintiff's decedent, a man of 48 at the time of his death, had been for 35 years in the employ of the Southern Railway, the last 25 of them as flagman. He met his death shortly before the railroads were returned to their owners so that the suit was necessarily brought against the defendant as successor to the Director General of Railroads. Both parties agree that the facts bring the case under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665), although the plaintiff's complaint did not disclose that fact, and apparently was drawn as if the cause of action arose under the laws of South Carolina. The defendant asked for a directed verdict on the ground of a variance in this respect between the allegation and the proof. Defendant was not surprised, for he had in his answer alleged that the case came under the federal law. When the point was made, technically it might have been better had the plaintiff amended; but no substantial harm resulted from her failure to do so. Act Feb. 26, 1919, c. 48, 40 Stat. 1181 (Comp. St. Ann. Supp. 1919, Sec. 1246).

The one question which calls for consideration is whether the defendant was entitled to a directed verdict because of failure of the plaintiff to prove that he was negligent. The facts as shown by the record are that the plaintiff's deceased was on the morning of February 24, 1920, a flagman on a local passenger train running from Charleston to Columbia. It had left the last telegraph station south of where the fatal accident happened some 4 minutes late. When it arrived at the trestle from which the plaintiff's decedent later fell, it found the track just beyond blocked by a number of freight cars, forming part of a train, the engine of which had gone dead while attempting to pull them into a Y almost half a mile beyond. No other locomotive was at the moment available. It was important to get the track cleared as soon as possible, for everybody knew that the local was being followed by the Carolina Special, a fast express train, which was scheduled to reach the place of the block within 14 minutes after the local, if the latter had been on time, would have passed it. When the local came to an enforced stop, the express was accordingly due within 10 minutes or less. The engineer of the passenger train, which consisted of five cars, exclusive of the engine and tender, first brought his engine against one block of the freight cars. He supposed that he had coupled to them, and he pushed them ahead until the foremost of them came up to another lot (or, in railroad parlance, 'cut') of them. A brakeman of the freight train tried to couple the two sections of his train, but in order to do so found it necessary to have the cut, which the passenger engine had pushed up, pulled back a little. He signaled to the passenger engineer to back. When the latter started to do so, he found that his engine had never been coupled to the first cut. It was necessary to make that coupling. After this had been done, he backed as requested, and then went forward and made the second coupling, and pushed all the stalled freight cars on the Y and cleared the track.

This operation necessarily involved some backing, pulling, and jarring; but no witness speaks of more than one of the jolts as being appreciably out of the ordinary. This one was doubtless the result of the engineer of the passenger train, while endeavoring to make one of the couplings, moving his engine forward at the rate of about 6 miles an hour, which he says himself was too fast, bearing in mind that his was a passenger train. The theory of the plaintiff was that this jolt was one of the causes of the decedent's fatal fall. When the passenger train stopped, it was, as already stated, as much as 4 minutes late. The Carolina Special was due in 10 minutes. The cause of the detention was such that an indefinite, but appreciable, time would be required to get the track clear. Under these circumstances, what is known as rule 99 of the railroad came into operation. It reads as follows:

'When a train is stopped at an unusual point, or is delayed at a regular stop over three minutes, or when it fails to make its schedule time, the flagman must immediately go back with danger signals to stop any train moving in the same direction. At a point one-half of a mile (or 18 telegraph poles) from the rear of his train he must place one torpedo on the rail, on engineman's side; he must then continue to go back at least three-fourths of a mile (or 27 telegraph poles) from the rear of his train and place two torpedoes on the rail, ten yards apart (one rail length), when he may return to a point one-half of a mile (or 18 telegraph poles) from the rear of his train, and he must remain there until recalled; but if a passenger train is due within ten minutes, he must remain until it arrives. When he comes in he will remove the torpedo nearest to the train, but the two torpedoes must be left on the rail as a caution signal to any following train.

'If the delay occurs upon single track, and it becomes necessary to protect the front of the train, or if any other track is obstructed, the front brakeman must go forward and use the same precautions. If the front brakeman is unable to leave the train the fireman must be sent in his place.

'On descending grades, or during blinding storms or fog, the flagman must go as much farther than the distance named above as will insure absolute safety placing the torpedoes at relatively greater distances from the obstructions.'

Strict and literal compliance with this rule is of vital importance to every one who has occasion to travel by rail. The evidence shows that the deceased did not go back, at the most liberal estimate made by any of the witnesses, over 400 feet, or something less than one-sixth of the distance he was required to go. He there placed, not one torpedo, but two, and then started on a slow run back to his train, the rear of which upon the theory of the testimony most favorable to the plaintiff, was then slowly pulling over the trestle. Several witnesses saw him on his way back. Nobody had him in view at the instant he fell. The plaintiff's theory is, as he got to the back platform of the last car of his train, he attempted to grab it and get on its platform. At that instant the unusual jolt came, and in consequence he either could not get or keep his hold, or he slipped upon the loose and sloping stones of the trestle and fell off of it some 12 or...