Delaware & H. Co. v. Larnard

• Decision Date: 05 May 1908
• Docket Number: 17.
• Citation: 161 F. 520
• Parties: DELAWARE & H. CO. v. LARNARD.
• Court: U.S. Court of Appeals — Third Circuit

161 F. 520

DELAWARE & H. CO. v. LARNARD.

No. 17.

United States Court of Appeals, Third Circuit.

May 5, 1908

James H. Torrey, for plaintiff in error.

Paul Sherwood, for defendant in error.

Before DALLAS, GRAY, and BUFFINGTON, Circuit Judges.

GRAY Circuit Judge.

The material facts disclosed by the record brought before us by the writ of error in this case are as follows:

The defendant in error (hereinafter called the plaintiff) brought her action in the court below against the plaintiff in error (hereinafter called the defendant) to recover damages for the death of her husband, who was killed while walking on the highway across the tracks of the defendant company, near the Dickson City station, in November, 1906. The highway in question was called Boulevard avenue, and ran nearly north and south where it crossed the tracks of the defendant company, and that of two other railroad companies in close proximity thereto. From a northerly direction, it first crossed, at right angles, the Delaware, Lackawanna & Western Railroad, which, at that point, ran due east and west. It then continued through an open space of nearly 99 feet, to the tracks of the Ontario & Western Railroad, where there were two tracks, and a switch at the crossing branching out towards the west into a number of yard tracks, and a depot building on the northern side of said tracks and on the easterly side of said avenue, not more than 20 or 30 feet therefrom. These tracks, as well as those of the defendant company, crossed the avenue, not at right angles, as those of the Delaware, Lackawanna & Western did, but somehow diagonally, nearly (though not quite) in a northeasterly and southwesterly direction.

After crossing the tracks of the Ontario & Western, the avenue crosses an open space of nearly 58 feet, between the latter tracks and those of the defendant company. These tracks are four in number, the north and south, or the two outside ones being freight tracks, and those in between passenger tracks. These four occupy a space of 51 feet across. It was at the crossing of the northerly track that the accident in question happened. In the space last mentioned, between the Ontario &amp Western tracks and those of the Delaware & Hudson, about 20 or 30 feet easterly from the avenue, stood a gatehouse, high enough for the gatekeeper to look over the tops of cars on the several railroads. It appears from the evidence that a gatekeeper was employed by the defendant company, to operate two safety gates which stood to the north of the Delaware Lackawanna & Western and south of the Delaware & Hudson railroad. There were thus only two gates, one to the north and one to the south of this group of railroads, the distance between the two being about 224 feet.

On the day in question, the plaintiff's husband, with his son, a man about 24 years of age, were coming south on the Boulevard avenue, accompanying two wagons loaded with lumber, owned by the deceased, who was in the lumber business. The wagons were on their way to the south side of the defendant company's railroad, to load the lumber onto cars standing on a switch of the defendant company on the said south side, a little to the east of the avenue.

As the teams approached the tracks of the Delaware, Lackawanna & Western Railroad, the gates were up, but the deceased and his son, as a matter of greater precaution, as testified by the son, walked across these tracks, and the head team followed them, into the open space between these tracks and those of the next railroad. According to the testimony of the son, the team was halted in this space while he and his father walked on across the tracks of the Ontario & Western, and onto and across the northern track of the defendant company. He says, as they were stepping from this track, they saw a passenger train coming from the west on the next track but one of defendant's road, and started back onto the freight tracks from which they had just stepped, when a train of cars, which they had observed upon their left hand and close to the crossing, started with a jerk towards them, striking his father with fatal result, he himself just escaping. There is some testimony to corroborate this of the son, especially as to the sudden movement or jerk of the freight train that was being backed across the highway.

The testimony of the defendant is that a draft of 19 freight cars, with a caboose attached at the rear, had, a short time before, been drawn east of the crossing, in order to back onto certain switches, both east and west of said crossing. That, in coming back, and within a few feet of the crossing, while proceeding slowly, the caboose was uncoupled from the train, in order that it might be shoved back and across a switch west of the crossing, before the rear of the freight train reached it. To accomplish this maneuver, or 'kick-back' as it is sometimes called, it was either necessary, if the train were moving at sufficient speed, to stop or slow up, so as to allow the caboose to get away from it, or, if the train was not going fast enough at the time of the uncoupling, to give a shove or start for a little distance, so that the caboose might have the requisite momentum to carry it past the switch ahead of the train. It does not appear with entire certainty how, according to defendant's testimony, the maneuver was accomplished. The plaintiff's testimony, however, seems positive that the train was standing just east of the siding, and started back with a sudden jerk when four or five feet away from the deceased. The plaintiff's counsel has argued that the latter may have been what really occurred, and the sudden acceleration of speed just at the crossing, was equivalent in its results, and might have been mistaken by plaintiff's witnesses for a sudden start from a state of rest. The plaintiff's witnesses, however, were positive that the train was standing still within a few feet of the crossing, and started back with a sudden jerk, which caused it to strike the deceased.

We are not prepared to say that there was no evidence sufficient to support one or the other of these theories propounded by the plaintiff, whatever may be our view as to the weight of the testimony in contradiction of them. Defendant's testimony established the fact that the train was adequately manned with a conductor and brakeman. These all testify that the train, when it started back, continued to move at a slow rate of speed, uniformly and without acceleration, until the time of the accident, and this testimony is corroborated by that of two engineers or employes on engines standing on the tracks of the other roads alongside of the defendant's.

The conductor also testifies that he was at the rear end of the caboose, as it approached the crossing, and saw the deceased standing on the track, and shouted at him twice before the collision, though the son testified that he heard no such warning or other signal. There was also the usual conflict of testimony between those on the train and some who were standing by, as to the hearing of any signal by a bell or whistle, and little importance is to be attached to the testimony of those who can merely say that they did not hear what others positively say they did hear.

There were other facts, however, of a pregnant character, which properly...