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

• Decision Date: 21 July 1921
• Docket Number: 2645.
• Citation: 274 F. 599
• Parties: HOUSTON v. DELAWARE, L. & W.R. CO.
• Court: U.S. Court of Appeals — Third Circuit

274 F. 599

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

No. 2645.

United States Court of Appeals, Third Circuit.

July 21, 1921

Peter F. McAllister, of Ithaca, N.Y., and Martin Conboy, of New York City (Edwin N. Moore, of New York City, of counsel), for plaintiff in error.

Frederic B. Scott, of New York City, for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS Circuit Judge.

Frank J. Houston, plaintiff's intestate, was a passenger on defendant's train running from Hoboken to and through Orange, N.J., on April 5, 1917. The station at Orange, at this time, was a stationary one. On each side of the station the defendant was doing extensive construction work. The train was composed of the locomotive, 55 feet long, and 6 coaches, each 60 feet long. The car next to the locomotive in which the deceased was sitting was a combination car, one end of which was used as a baggage car, which was next to the locomotive, and the other end as a smoker. In the smoker end and beside the toilet near the door there was an emergency brake, and also a whistle cord that ran through the car. As the train was nearing the station, a trainman called out 'Orange.' About this time Houston was seen standing on the steps at the rear platform of the smoker. The train had crossed Essex avenue, 400 feet from the station, when in some way Houston disappeared from the train. At this time Harvey G. Galbraith, Jr., a trainman, was crossing from the platform of the smoker to the next car back, when he saw 'an object go by.' He 'looked over and * * * missed a person off the lower platform * * * off the lower step, off the other step, the rear end of the smoker. ' 'I reached up and pulled the whistle cord twice,' he said. About that time somebody said some one 'fell off,' and Mr. Thomas Lehman, one of the plaintiff's witnesses, who was standing on the front steps of the car immediately following the smoker, said that the trainman, Galbraith, pulled the whistle cord immediately thereafter.

The defendant's witnesses testified that the train stopped within 60 feet after the signal was received. The plaintiff contends that the train went much farther. It was testified that an arm of the deceased was found near the end of the train, which, plaintiff asserts, shows that, after Houston disappeared from the train, it ran nearly the length of the five cars following the smoker. There is no competent evidence as to whether the deceased jumped off the train or fell off. Whatever the fact may be, there was an incline of the ground toward the track where he left the train, and he apparently lost his balance and rolled under it.

The case was submitted to a jury, which returned a verdict for the defendant, and the plaintiff sued out a writ of error alleging that the learned trial judge erred in refusing to charge two requests submitted to him after he had charged the jury and it was ready to retire. They were:

(1) 'Even if Frank J. Houston had been guilty of contributory negligence at the time he was killed, but they find that the servants of the railroad company in the management and control of the train discovered the dangerous and perilous situation of the deceased in time to have prevented his death if immediate and proper steps had been taken to stop the train, and they find further that the engineer in control of the engine that was moving the train received a signal to stop the train, and that the train could have been stopped in time to have saved the life of the deceased, and was not so stopped, they should find a verdict for the plaintiff.'

(2) 'Even if the deceased carelessly placed himself in a position exposed to danger, and it was discovered in time to have avoided the injury by the use of reasonable care on its part, and the defendant failed to use such care, that failure may be found to be the sole cause of the resulting injury.'

The statute in New Jersey which may be applicable to this case provides that:

'If any person shall be injured by * * * jumping on or off a car while in motion, such person shall be deemed to have contributed to the injury sustained, and shall not recover therefor any damages from the company owning or operating said railroad. ' Section 55 of the Railroads and Canals Act of New Jersey; 3 Compiled Statutes of New Jersey, 4245.

A notice of which the following is a copy was posted in the smoker, about a foot from the door and five or six feet from the floor on the right side of the car:

'The Delaware, Lackawanna & Western Railroad.

'Notice to Passengers.

'Passengers must not go or remain on the platforms of this car while the car is in motion, nor must they go at any time in any baggage or freight car.'

If the deceased jumped off the train while it was moving, recovery is barred by the statute. Powell v. Erie R.R. Co., 70 N.J.Law, 290, 58 A. 930; Zelman v. P.R.R. Co., 93 N.J.Law, 57, 107 A. 442; Erie R.R. Co. v. Hilt, 247 U.S. 97, 38 Sup.Ct. 435, 62 L.Ed. 1003. The plaintiff alleged in her complaint that--

'The said train, when about to stop at said station, suddenly and violently swayed and jolted, and the plaintiff's intestate was by said swaying and jolting thrown to the ground.' There was no evidence to sustain that allegation, and, if there had been, the deceased went on the platform and steps of the car while the train was in motion, in violation of the printed notice and the New Jersey statute. Recovery under the facts of this case is therefore barred. Section 39, Railroads and Canals Act; 3 Compiled Statutes, 4240.

The plaintiff really complains...