Elliott v. Canadian Pac. Ry. Co.

• Decision Date: 14 April 1908
• Docket Number: 197.
• Citation: 161 F. 250
• Parties: ELLIOTT v. CANADIAN PACIFIC RY. CO.
• Court: U.S. Court of Appeals — Second Circuit

161 F. 250

ELLIOTT v. CANADIAN PACIFIC RY. CO.

No. 197.

United States Court of Appeals, Second Circuit.

April 14, 1908

Max L Powell, for plaintiff in error.

F. E Alfred and W. B. C. Stickney, for defendant in error.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

LACOMBE Circuit Judge.

This cause was before this court (Canadian Pacific R.W. v Elliott, 137 F. 904, 70 C.C.A. 242) on a writ of error to review a former judgment in favor of the plaintiff, and the facts relevant to the questions now before us may be best set forth in excerpts from our former opinion:

'Besides the main line there are at Richford several sidings numbered, respectively, 1, 2, etc. A few minutes prior to the accident a through freight train from Montreal had pulled into the yard.

It was necessary to cut some cars out of it. Two cars which had been in the middle of the freight train were first sent down siding No. 1 in charge of one Sears as rear brakeman. After they were brought to a standstill, he returned to the train, and five cars located just in front of the caboose were cut out and kicked back on the same siding. Sears rode those also, and they came with great force against the other two cars, driving them back a considerable distance. Deceased and a car inspector, Green, had been examining a freight train which had drawn into the yard on the next siding, No. 2. They had finished that job, and were on their way back to the station to await the next job, when they drew near to the rear of two cars on siding No. 1. Elliott (the deceased) suggested that they should test the 'knuckle'-- a part of the coupling-- of the rear car. Both of the men thereupon stepped in behind the car, where they would be hidden from the view of any one 'riding down' any cars moving towards them on siding No. 1. The testing of the knuckle is an operation very quickly performed, but before they had finished it the five cars struck the two, and, as the latter moved backward under the impact, deceased was knocked down, run over, and killed.'

It was contended by plaintiff that the accident was caused by Sears' improper handling of the five cars; that he was not a proper, efficient, and competent brakeman; and that defendant was negligent in intrusting such an operation to so incompetent a man. Upon the former appeal the case was disposed of on that branch of it which dealt with contentions of defendant that Elliott was himself guilty of negligence which caused the accident. It appeared that for a considerable time prior to August 10, 1901, the company's book of rules and regulations for the guidance of its employes contained rule 14, which provided that, when it was necessary 'for car inspectors to work under a car,' they must protect themselves by attaching to the car a red flag by day or a red light by night. This rule was on August 10, 1901, superseded by a new one which was substituted for it in a revised book of rules and which read as follows:

'Rule 26. A blue flag by day and a blue light by night, displayed at one or both ends of a car, engine, or train indicate that workmen are under or about it. When thus protected it must not be coupled to or moved. Workmen will display the blue signals and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track so as to intercept the view of the blue signals, without first notifying the workmen.'

No subsequent change was made in the rule prior to the accident which happened August 7, 1902. Upon the occasion in question when Green and Elliott stepped in behind the car and proceeded to test the knuckle no flag was put upon the car. The survivor, Green, when asked, on this trial, why this was, replied that he 'couldn't tell why he didn't put up a flag.'

Upon the former trial plaintiff undertook to prove that this rule had been so frequently and continuously disregarded, when merely the inspection of a knuckle was involved, as to make it a dead letter and disobedience of it no ground for imputing contributory negligence. The court on the former trial left that question to the jury upon all the evidence and the judgment in favor of plaintiff was reversed, because of error in the admission of evidence on that branch of the case. It will be observed that under the earlier rule the display of a signal was required only when car inspectors were at work under a car, while under the latter rule ...