Director General of Railroads v. Templin, 2585.

• Decision Date: 12 November 1920
• Docket Number: 2585.
• Parties: DIRECTOR GENERAL OF RAILROADS v. TEMPLIN [1]
• Court: U.S. Court of Appeals — Third Circuit

268 F. 483

DIRECTOR GENERAL OF RAILROADS v. TEMPLIN ^[1]

No. 2585.

United States Court of Appeals, Third Circuit.

November 12, 1920

Wm Clarke Mason, of Philadelphia, Pa., for plaintiff in error.

Frank F. Davis, of New York City, for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

This writ of error brings here for review a judgment in favor of the plaintiff below for the death of Burd Templin, who was killed while working as a brakeman on a freight train of the Philadelphia & Reading Railway Company. The facts of the case are briefly these: Preparatory to making a stop Templin's train was moving slowly on a sidetrack next to the southbound main track in the defendant's yard at Reading, Pennsylvania. While his train was still moving Templin jumped down from between two box cars into the space between his train and the southbound track, on which an express train was rapidly approaching from the rear. The clearance being insufficient, Templin was struck and killed.

The duty which the plaintiff averred the defendant owed the decedent was that of timely warning; and the negligence she charged was the defendant's failure, contrary to prevailing custom, adequately to warn the decedent of a train approaching from the rear and about to pass on the main track.

It was admitted that both the employe and employer were engaged in transportation of interstate commerce at the time of the accident. Therefore the Federal Employers' Liability Act (Comp. St. Secs. 8657-8665), under which the action was brought, bears only on the court's charge with reference to assumption of risk and contributory negligence, specified as error.

The first question-- the one on which all others turn-- is whether the trial court erred in admitting testimony offered to prove a yard practice or custom under which express trains moving on the main track blow a whistle or sound a bell on approaching the rear of a freight train standing or moving slowly on the next sidetrack. We see no valid reason why this testimony should not have been offered and admitted. Although the testimony of one of the witnesses was so weakened on cross-examination that its probative value may have disappeared, there was for that reason no error in admitting it; and in the absence of a motion to strike it out, there was no error in retaining it in the record. Aside from the testimony of this witness there was other testimony as to the custom which was sufficient to sustain the jury's finding that it existed. Robinson v. United States, 13 Wall. 363, 366, 20 L.Ed. 653; Fletcher v. Baltimore, etc., R. Co., 168 U.S. 136, 18 Sup.Ct. 35, 42 L.Ed. 411.

The jury has found a custom of warning. The decedent was presumed to have known it. Erie R. Co. v. Healy (C.C.A.) 266 F. 342; Healy v. Erie R. Co., 91 N.J.Law, 325, 102 A. 629. On this finding of fact and on this presumption depend the remaining assignments of error.

The defendant next raised a question of the decedent's assumption of risk and of error in the court's charge in respect thereto, pursuing the question on the theory that express trains moving on the main track did frequently approach, overtake and pass freight trains on the next track without warning; and that the decedent knew it, and, because of this fact and his knowledge of it, the decedent assumed the risks incident to it, citing familiar cases of yard accidents where there existed no custom as to warning and where from the very nature of yard movements warnings were impracticable.

In raising this question the defendant has disregarded the fact and effect of the custom found, in which is implied, first the need of warning, and second, the practicability of giving warning. In Aerkfetz v. Humphreys, 145 U.S. 418, 12 Sup.Ct. 835, 36 L.Ed. 758, where no custom of warning was involved, the court held that a yard track employe assumed the risk of the danger of a shifting movement without warning; and in Connelley v. Pennsylvania R. Co., 228 F. 322, 142 C.C.A. 614, where likewise no question of custom as to warning was involved, and where practically all the tracks in the yard were main tracks, this court made a similar ruling. The case at bar is readily distinguishable from these two cases on which the defendant mainly relies and from two others recently decided by this court. Hines, Director General, v. Jasko, 266 F. 336, and Erie R. Co. v. Healy, 266 F. 342. In the first, there being no sufficient proof of custom affecting or defining the duty of the railroad company to warn yard employes of coupling movements, we held that the defendant railroad company had not been shown guilty of negligence in the absence of proof of what warning under the circumstances it should and could have given, and that, in consequence, the yard employe had assumed the risks of such movements on accepting his employment. So also in the latter case we found, in the absence of proof of a custom as to warning, a similar assumption of risk by a yard employe. But in McGovern v. P. & R. Ry. Co., ...