Gatta v. The Philadelphia, Baltimore and Washington Railroad Company

• Decision Date: 20 June 1911
• Citation: 25 Del. 356,80 A. 617
• Court: Supreme Court of Delaware
• Parties: FRANCES THERESA GATTA, plaintiff below, plaintiff in error, v. THE PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, defendant below, defendant in error

80 A. 617

25 Del. 356

FRANCES THERESA GATTA, plaintiff below, plaintiff in error, v. THE PHILADELPHIA, BALTIMORE AND WASHINGTON RAILROAD COMPANY, defendant below, defendant in error

Supreme Court of Delaware

June 20, 1911

Supreme Court, June Term, 1911.

WRIT OF ERROR (No. 4, June Term, 1912) to the Superior Court for New Castle County. Action by Frances Theresa Gatta against Philadelphia, Baltimore and Washington Railroad Company (No 57, September Term, 1907) to recover damages for death of plaintiff's husband. Judgment for defendant (1 Boyce 293 76 A. 56), and plaintiff brings error. Reversed. The facts and questions presented appear in the opinion of the court. (See trial of same case, post 551.)

The judgment is reversed.

Horace G. Eastburn and Anthony Higgins for plaintiff in error.

Ward Gray and Neary for defendant in error.

CURTIS Ch., PENNEWILL, C. J., and Associate Judges CONRAD and WOOLLEY sitting.

OPINION

WOOLLEY, J.

This is a writ of error to the Superior Court for New Castle County, brought to review the proceedings and judgment in an action instituted by the plaintiff to recover damages for the death of her husband, occasioned by the alleged negl gence of the defendant, wherein the jury under the instruction of the court rendered a verdict for the defendant.

From the evidence disclosed by the record, it appears that Charles Gatta, the plaintiff's husband, was, on the day of the injury that caused his death, and for a considerable period theretofore, had been in the employ of the Pullman Company at its car works in the City of Wilmington; that the premises of the Pullman Company were located on the easterly side and adjoining the elevated tracks of the main line of the defendant railroad company, its buildings and shops were situated some distance southerly thereform, and between the elevated tracks of the railroad company and the shops of the Pullman Company, there was an inclosed yard; that within this yard placed parallel with the shops of the Pullman Company and the elevated structure of the railroad company were three railroad tracks, which were designated and known as tracks "A," "B" and "C," A being the one nearest the shops, C the one nearest to the elevated road and furthest from the shops, and B the one between the other two; that these tracks were connected at or about the entrance to the yard with tracks and sidings belonging to the railroad company which further on were connected with its main line of railway; that tracks A, B and C, as well as the yard within which they were located, were the private property of the Pullman Company, upon which Pullman cars stood while being repaired, and over which the railroad company shifted Pullman cars in delivering or receiving them in its business of transportation.

It appears that between the shops and track A there was a wooden platform or flooring and a like platform or wooden passageway between tracks A and B, and that the distance between the shops and track A was about eight or nine feet. It is further shown that on the morning of the accident, five Pullman coaches were standing on track A, being uncoupled and at short distances apart from each other, that two or more were on track B and that one or more were on track C; that upon that day, Gatta was working in what was known as the wash stand and hopper gang, and a few minutes prior to his death had been making repairs to a hopper in a car on track B; that he left this car for the purpose of seeing his foreman, Cooney, who was in a shop a short distance east of track A; that in going from the car on track B to see his foreman, it was necessary for Gatta to cross track A; that some time on the morning of the accident a shifter had worked on track C, after which it left track C and went out of the yard; that while Gatta was in the shop the shifter returned to the yard upon track A, pushing a Pullman car ahead of it and stopped just within the gate; that while Gatta was still in the shop, the crew of the shifter, which was owned and operated by the defendant railroad company, caused notice to be given that shifting was about to be done on track A, by having one of its crew and one of the Pullman employees to pass along each side of track A calling, "Look out on track A"; that this warning was given from two to three or from three to four minutes before Gatta and Cooney came out of the shops on their way back to track B.

It is further given in evidence that the shifting crew consisted of Baylis, Cox, Donovan and Nugent, who were lined up in this order along the cars between tracks A and B, Baylis being near the engine, Cox, the conductor, standing at or about the second car from the engine and Nugent several cars away at the point of the accident, with Donovan between Nugent and Cox, and that Jones, the engineer, from his position in the right side of his cab next to track B, either by looking forward or from the side, could see only Baylis and Cox; that within the period of from two to four minutes after the warning had been given, Gatta came out of the shop, on his way back to track B, followed by Cooney, and walked rapidly for about twelve or fifteen feet diagonally across the narrow space between the shop and track A, in the direction of the shifter and towards an opening between two cars on track A; that Nugent and employees of the Pullman Company were at this opening on the side of track A next to track B, but in the passageway between track A and the shop there was no one to notify Gatta and Cooney that shifting was about to be done on that track or to warn them of the danger towards which they were rapidly walking, and that after the preliminary and customary warning given while Gatta was in the shop from two to four minutes before he came out, no other warning was heard save perhaps by the engineer, until Gatta got between the cars.

It further appears that from the time Gatta left the building until he started between the cars, the cars were still, and while passing between them, Gatta stopped to let some one pass from the platform of one of the cars to the platform of the other, and as he afterward proceeded, the shifter caused the cars to come together and he was crushed.

It was shown that upon several of the buildings of the Pullman Company the following notice was posted: "Notice. Employees must not work under cars or on scaffolds or ladders inside of cars or pass between cars while cars are being shifted in the yard. John Cannon, Manager." As to the observance of this rule, Polster, a witness, testified in substance, that he knew of the existence of the rule, that he never paid much attention to it. The rule was to run (meaning to work with dispatch) and that his boss always told him when the shifter came in, to stay away from the cars they "hollered on, and until they hollered" he kept on working.

The witness Cooney testified in part:

"X. What is the warning that is given there when they shift cars on A track?

"A. It is 'Look out on A track,' or 'Look out on B track,' or 'Look out on C track'--whatever track it is--'Look out; a shifter is in the yard.'

"X. Who does that?

"A. The Pennsylvania shifting crew, and the Pullman crew on that day.

"X. They just call, when shifting is about to be done on A track, to 'Look out on A track,' or 'Look out for the shifter on A track?'

"A. They just come along and holler when the shifter comes in the yard. The shifter gets in the gate and then it generally stands there while the warning is given through the yard, and they most always holler each side of the car.

"X. Every time shifting is to be done on A track, they come down each side, calling 'Look out on A track?'

"A. Yes, sir.

"X. That is the regular signal or warning given in shifting there?

"A. Yes, sir."

The engineer of the shifter testified that it was customary when he ran his engine on to track "A", for the purpose of shifting on that track, to stop the engine before shifting began.

"Q. What was done after you stopped on this track (meaning 'A') by yourself or the crew of your shifter?

"A. I stopped there and waited until I got a signal from the crew to come head. They generally went up and down the track and hollered 'Look out on A.'

"Q. Did they do it on this occasion?

"A. Yes, sir.

"Q. You say they generally did it?

"A. Yes, sir.

"Q. Do you mean to say they generally did it before they did shifting on that track?

"A. On A track.

"Q. Who gave the warning in your crew?

"A. That morning I heard Conductor Cox and the gang boss of the Pullman Company--heard them particularly."

From this statement of the facts it appears that in some of its aspects this case resembles the case of Rex v. Pullman's Palace Car Company, 16 Del. 337, 2 Marv. 337, 43 A. 246, although none of the questions there raised and decided were presented or considered in the trial of this case.

On the defendant's motion, the court below directed a nonsuit, which the plaintiff refused to accept, whereupon the court gave to the jury binding instructions to return a verdict for the defendant, upon the grounds that the plaintiff had produced no evidence from which negligence on the part of the defendant could reasonably be inferred and that from the evidence produced by the plaintiff it appeared that the plaintiff's husband was guilty of contributory negligence.

The errors assigned to have been made by the trial court and which are here under review, are seven in number, and when considered generally, relate, first, to the court's refusal to permit the plaintiff to prove that in the absence of shifting, it was customary for the Pullman employees to pass between the cars standing upon the tracks; second, to the rejection of evidence that there was no rule against employees...