Delaware, L. & W.R. Co. v. Ashley

• Decision Date: 22 April 1895
• Docket Number: 2.
• Citation: 67 F. 209
• Parties: DELAWARE, L. & W.R. CO. v. ASHLEY.
• Court: U.S. Court of Appeals — Third Circuit

67 F. 209

DELAWARE, L. & W.R. CO. v. ASHLEY.

No. 2.

United States Court of Appeals, Third Circuit.

April 22, 1895

Flavel McGee, for plaintiff in error.

John T Griffiths and William T. Edwards, for defendant in error.

Before ACHESON and DALLAS, Circuit Judges, and BUFFINGTON, District Judge.

BUFFINGTON District Judge.

This case arises upon a writ of error sued out by the Delaware Lackawanna & Western Railroad Company to reverse a judgment recovered against it by Thomas Ashley in the circuit court of the United States for the district of New Jersey for personal injuries. The facts of the case are these: Ashley, the plaintiff, resided in the state of Indiana, and was in the employ of one Jordan, of Indianapolis, who was a large shipper of car loads of poultry from that region to New York. For two years Ashley had accompanied such cars of poultry free of extra charge, and had fed and watered the fowls en route. On March 11, 1892, Jordan delivered to the Cleveland Cincinnati, Chicago &amp St. Louis Railway Company a car of live poultry for transportation to New York; the bill of lading stipulating, 'Via D., L. & W. from Buffalo,' and 'Man in charge to pass free from Indianapolis,' and the through waybill stating, 'To go via D., L. & W. from Buffalo,' and 'Pass man in charge free from Indpls. ' The defendant company received the car with the accompanying waybill at Buffalo, and issued a permit to Ashley 'to ride free on train with car 273,* * * subject to the conditions this day signed by him,' which conditions stipulated, inter alia, for a release to defendant for injury to person 'while using said permit, even though such loss, injury, or damage should be caused by the negligence of the company or its agents. ' Between 5 and 6 o'clock on the evening of March 16th the train, a part of which the poultry car was, and consisting of locomotive, about 20 freight cars, and a caboose, and a crew of an engineer, fireman, three brakemen, a conductor, and a flagman, left Washington, N.J., where the cars were inspected, and from thence proceeded some three miles, to the Port Murray water station. Here it stopped for water. While passing through Ramsay's cut, a short distance beyond the water station, the caboose and two cars were found by those on board them to have parted from the forward part of the train. They were promptly stopped, and a flagman sent back, who flagged an approaching wildcat train, which was known to be following. The wildcat engine then pushed the caboose and freight cars out of the cut, so the trainmen could see and signal the forward part of the train when it returned to pick up the parted cars. The wildcat engine, with steam up, remained standing about 10 or 15 feet back of the caboose. The conductor and one of the brakemen went to the foremost car, to await the return of the forward part of the train. The flagman went into the caboose, and began making out his report, and Ashley, the plaintiff, came in, and lay down on one of the caboose bunks. The night was dark. The middle brakeman was on the rear of the train when the separation occurred, alleging that after leaving the water station he had come to the caboose to get his overcoat and rubbers, preparatory to going forward on the train to use the brakes on a descent beginning at Rockport summit. This was the situation about 7 o'clock on the rear portion of the train. The grade from Ramsay's cut to Rockport summit was rising, but not continuously so. It was broken at places by 'sags' or depressions. As he was nearing the summit, the engineer failed to see the caboose light, and at once signaled for it. Receiving no response, and unable to see by reason of escaping steam, he slowed down, and sent back the forward brakeman, who was on the rear of the engine, to see the situation. In point of fact, two breaks had in the meantime happened in addition to the first one. The engine and 3 cars had broken from the other 15 cars, and of these 15, 2 or 3 cars had broken loose at the rear end. This left the train in four pieces, as follows: The engine and 3 cars, slowed up, and just reaching the summit; about 12 or 13 cars following; back of these, a third section, of 2 or 3 cars; and the caboose and 3 cars, stationary at Ramsay's cut. Very shortly after slowing up, the forward section was struck by the second, and immediately the third struck the second. One of the cars in the first section was derailed. The striking cars rebounded, and started slowly on the down grade towards the cut, with no one aboard. The first intimation the lookouts on the rear section had was a lumber car looming out of the darkness. They shouted, and the flagman in the caboose and all the train hands got out or off. The third section struck the fourth, and this was immediately succeeded by a more violent second collision, caused by the second section striking the third. The caboose was driven into and mounted the wildcat engine, and tore off its valves. The escaping steam entered the caboose, and scalded the plaintiff. Of the serious character of his injuries, and of the amount of damages recovered, no question is raised, if in other respects there was no error. The assignments of error resolve themselves into five groups: (1) Was the release of the plaintiff valid? (2) Was there evidence of negligence on part of defendant to submit to the jury? (3) Was the court bound to give binding instructions that Ashley was guilty of contributory negligence? (4) Was there error in the admission or rejection of certain evidence? (5) Did the court fix an undue measure of care or duty as due from the defendant?

By the contract between the initial company and Jordan, the car and one man, in consideration of an agreed-upon freight charge were to be carried to New York. The plaintiff was a passenger for hire, for his passage was one of the mutual...