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

• Decision Date: 27 February 1917
• Docket Number: 185.
• Parties: DELAWARE, L. & W.R. CO. v. HUGHES.
• Court: U.S. Court of Appeals — Second Circuit

240 F. 941

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

No. 185.

United States Court of Appeals, Second Circuit.

February 27, 1917

Charles V. Byrne, of Syracuse, N.Y., for plaintiff in error.

Edward W. Cregg, and Gregg Bros. & Rulison, all of Syracuse, N.Y for defendant in error.

Before COXE, ROGERS, and HOUGH, Circuit Judges.

COXE Circuit Judge.

This action was brought by Esther A. Hughes, as administratrix of the estate of Thomas Hughes, deceased, to recover damages of the Railroad Company for its alleged negligence in causing the death of her husband. The action was brought under the federal Employers' Liability Act. The jury found a verdict for the plaintiff in the sum of $3,715.

Thomas Hughes was killed on a track of the defendant's road at Syracuse at about 4 o'clock on the morning of August 10 1916, while it was yet dark. He was a man of experience and long service in the defendant's employ and was thoroughly acquainted with the premises in question. He was killed by being run down by a freight car which the plaintiff insists was improperly managed in that there was no watchman at or near its end with a signal lantern to warn those who had a right to be on the track of an approaching car. It appears that there were trains passing on the main tracks and the noise so produced rendered it impossible for Hughes to hear the approach of the car and it is argued that he could not see the red light on the car for the reason that the man with the lantern was not where he should have been, near the forward end of the car. On the contrary, it is contended that he was on the roof of the car about the middle, where he could not see the track and a person on the track could not see the red lantern unless he were a long distance away. The jury might, therefore, have found that Hughes, while discharging his duties on the branch track, was killed by a car striking him without sufficient signal or warning of any kind. True, they might have found the reverse of this proposition but such a concession does not alter the force of the plaintiff's contention that there was a clear question of fact to be decided and that there was sufficient testimony to sustain the verdict for the plaintiff.

We are convinced that there was a question of fact for the jury and their verdict is sufficiently supported by the testimony. Thomas Hughes was employed as switchman by the defendant in its Syracuse yard for 25 years. He must have been thoroughly acquainted with the situation and familiar with the location of the tracks, the movement of trains and all the customs of the yard. That such a man...