Grand Trunk Ry. Co. of Canada v. Baird

• Decision Date: 01 March 1899
• Docket Number: 16.
• Citation: 94 F. 946
• Parties: GRAND TRUNK RY. CO. OF CANADA v. BAIRD.
• Court: U.S. Court of Appeals — Second Circuit

94 F. 946

GRAND TRUNK RY. CO. OF CANADA v. BAIRD.

No. 16.

United States Court of Appeals, Second Circuit.

March 1, 1899

George F. Brownell, for plaintiff in error.

George Raines, for defendant in error.

Before LACOMBE and SHIPMAN, Circuit Judges.

SHIPMAN Circuit Judge.

The injury occurred about half past 11 o'clock in the forenoon of May 4, 1892, upon a clear day, at the railroad yards of the New York Central Railroad Company, at Suspension Bridge, N.Y. The plaintiff was then about 36 years old, began railroad work in December, 1875, had been continuously in the employment of the New York Central Company, with the exception of a year and four months, and was a foreman of track repairs upon its tracks at Suspension Bridge, from May 8, 1890, until the accident. The main tracks of the New York Central are south of the Suspension Bridge station. Tracks Nos. 1 and 2 are north of the station. These three tracks run westerly, converge at a point where there are two switches about 600 feet west of the station, known in the case as 'A,' and become one track which continues westerly towards the Suspension Bridge. Tracks 1 and 2 are used by the defendant for carrying its freight and passengers into Canada. No. 3 is used by the New York Central road generally. Loaded freight cars destined for the Grand Trunk road are placed in the freight yard east of the station, are brought down by the switching engines of that road, and usually placed upon No. 1, and the train, when made up, is hauled upon that track beyond the switches to the defendant's Suspension Bridge connections. The engine returns, is switched at A to No. 2, comes back to a point east of the station, and a switch is turned to enable it to pass upon No 1 again. When the switching engine is about to return from the bridge, the switchman opens the switch at A to permit it to pass as a matter of course, and without previous notice upon No. 2, or, if the switchman is not at that point, a signal of two whistles is given from the engine to recall him. This yard and these tracks are constantly being used for switching purposes, and the plaintiff was familiar with the course of business, and knew, when he saw a switching engine going westward on track No. 1 beyond the switches, that it would soon return on track No. 2. On the morning in question the conductor of engine 449 found among his freight in the New York Central yards two cars for the Erie road. They were placed next the engine, and the train was pulled to the depot, and stopped on track No. 1. The two Erie cars were cut out, sent down on track No. 1, and delivered to the Erie yard by engine 449. The engine came back as usual to the switch was switched to No. 2, and continued upon that track until the accident happened, 193 feet east of the switch points. The switch was opened by the switch tender from his own knowledge of the necessity for doing so, and without a call by whistle.

The plaintiff testifies that he saw engine 449 when it pulled the train from the freight yard upon track No. 1, that it was cut off, moved away from the train, and was at the switch A, and was moving westward beyond the switch. He though that no cars were attached to it. He was, at that time, overseeing the unloading of some ties at a point on the main tracks about 60 feet south of the Diamond crossing, which is about 40 feet west of A. He testifies that he then went over to the frogs near A, and examined those on No. 2, to see whether they were in good order; saw what one of his workmen, named Stahl, was doing, who was working a few feet east of the crossing at the switches A, and who was about opposite the plaintiff on the other side of the track. He then walked down between tracks 1 and 2 a space of about 7 1/2 feet wide, and spoke to a workman named Smith; then walked beyond him about 50 or 60 feet, to speak to his men, who were loading iron in track 3; was going to step across track 2, and had just placed one foot over the rail, when he was struck by engine 449. He says that he was listening for a signal, heard no bell, had not looked back to see whether the engine was returning, paid no attention to it after he saw it move westerly, that when he was looking at Stahl he noticed the condition of the switches, and saw that the switch for No. 1 was open and for No. 2 was closed. He says that the accident might have been six or seven minutes, or a little more than that, after he noticed the condition of the switch. He received severe injuries. His leg was crushed; was necessarily amputated. The result of his other injuries is probably permanent. His earning capacity is pretty much destroyed, and, if he was entitled to a judgment in his favor, the injury justified the amount of the verdict.

It was apparent that the defendant was not in fault for not seeing and attempting to avoid him when he was upon the track, for he had only placed one foot over the rail when he was struck. When the evidence was closed, the two points upon which the plaintiff relied in order to establish the negligence of the defendant, were an unusual rate of speed of the engine after it passed upon track No. 2, or that it proceeded without ringing the bell. The state of the evidence required that the question of negligence should be submitted to the jury, which the trial judge did substantially as follows:

'The testimony is so clear that the engine came, and, track No. 2 being open, proceeded, as it customarily did, that it seems to me the only matter which requires your serious consideration upon this branch of the case is whether the engine, after it passed upon track No. 2, proceeded at an undue rate of speed, or proceeded without ringing the bell. In the first place, what was the customary rate of speed, and what was the practice in respect to ringing the bell? I shall not dwell upon the evidence. It has been suggested-- and the suggestion is entitled to consideration-- that all the men in charge of this engine testify that the bell was being rung, and that the engine was moving at a very moderate rate of speed, and it is competent for you to infer from their conduct of the engine as they would have us believe it was upon this occasion, and the other testimony in the case, what the ordinary practice was. If you find that their testimony is not reliable, that they were not in observance of the ordinary practice, that they were running the engine at an unusual rate of speed, and were not ringing the bell, then you can find the plaintiff has established his case, so far as it rests upon the negligence of the defendant. If, on the other hand, you find that on this occasion the defendant, through its employes, observed the precautions which were usually adapted, running the engine at the usual rate of speed, ringing the bell, as they testify they did, then the plaintiff must fail, because he will not have succeeded in establishing that the defendant was guilty of negligence.'

The verdict of the jury establishes the fact that they found the issue for the plaintiff.

The remaining vital question in the case is whether the conduct of the plaintiff so palpably showed contributory negligence that the judge should, in accordance with the request of the defendant, have taken the case from the jury. He did...