Howard v. Delaware & H. Canal Co.

• Decision Date: 26 October 1889
• Citation: 40 F. 195
• Court: U.S. District Court — District of Vermont
• Parties: HOWARD v. DELAWARE & H. CANAL CO.

40 F. 195

HOWARD v. DELAWARE & H. CANAL CO.

United States Circuit Court, D. Vermont.

October 26, 1889

Plaintiff's intestate was a trackman running a hand car, under direction of the section boss, towards an approaching train, to which the boss had sent a signal flag by one of the trackmen, to warn those in charge of the train of the approach of the hand car. The persons in charge of the train failed to keep a lookout, and ran into the hand car before those in charge could get out of the way, and intestate was killed. Held that the negligence of those in charge of the train caused the injury.

David E. Nicholson and Joel C. Baker, for plaintiff.

John Prout and Henry Ballard, for defendant.

WHEELER J.

Clary the plaintiff's intestate, was about thirty-seven years old; had three brothers and two sisters, no wife, children or parents; and had accumulated no property. He was employed as a trackman by a section boss of the defendant's road and, with four others, under direction of the boss, was running a hand-car over a part of their section towards a train coming from the other way, to which the boss had sent their signal-flag by one of the trackmen, to warn those in charge of the train of the approach of the hand-car. Neither the engineer nor any one in charge of or on the train was keeping any lookout ahead as it approached the hand-car, and no one on the train saw it till within two or three rods of it. The trackmen supposed the train would slow up as it approached them, in obedience to the warning, and came so near it before stopping to take the hand-car from the track that the boss saw it would be struck by the train before they could get it off, and told the men to run it the other way. They tried to do so, but could not move it fast enough to get away from the train, and he directed them to abandon it. In jumping from it, Clary was thrown under it, the engine struck it, and he was instantly killed.

The statutes of the state provide that when the death of a person is caused by such wrongful act, neglect, or default as would, if death had not ensued, have entitled the party injured to maintain an action therefor, the person or corporation that would have been liable if death had not ensued shall be liable to an action in the name of the personal representative for the benefit of the wife and next of kin, and that such damages may be given as are just, with reference to the pecuniary injury resulting from such death to them. R. L. Vt. Secs. 2138, 2139. This action is brought upon this statute, for the benefit of the brothers and sisters, as next of kin, and has been tried by the court upon waiver in writing of a trial by jury.

The defendant claims that Clary was negligent in remaining so long upon the car, and in jumping from it, and thereby contributed to the injury; that the collision was caused by the negligence of the flagman, a fellow-servant with Clary, in giving wrong information to the trainmen about where the hand-car would be met; and that, if it was caused by negligence of the trainmen, all were so fellow-workmen with Clary that the defendant is not liable to his representative for it.

Clary could see the train coming, and could have got out of its way; but, with the others, he relied upon due respect of the trainmen to the flag, and to the directions of the boss, for safety; and, in view of what he had a right to rely upon in those respects, he does not appear to have been negligent of duty to himself or others in staying at his place on the car as he did. He was moving backwards with the car, working it, with the others, to his utmost strength, when directed to abandon it; and appears to have been thrown before it by a misstep, caused by haste in turning and jumping, made necessary by the nearness of the train, and ledges of rock which prevented jumping off from the side of the car on which he was. Natural instinct would impel him to do what he could to save himself, and nothing shows that he did not obey it.

The testimony is conflicting as to what the man who carried the flag told those in charge of the train about where the trackmen and hand-car would be. Whatever that was, the flag of the sectionmen itself was a warning that they were on the track somewhere near, and were to be approached with caution; and it would be in force from the time when the flag was observed until they should be passed. To run the train towards them, after that warning, without keeping any lookout ahead for them, was a neglect of duty required for their safety as well as for that of the train. This negligence appears to have caused the collision, and the injury to Clary, without any contributing neglect of duty on his part. If the flagman contributed to the happening of the collision by giving wrong information, it would not have happened but for the negligence of those in charge of the train; and whoever is chargeable for that is liable for its consequences to Clary. Railroad Co. v. Barron, 5 Wall. 90.

The question of law whether the defendant is liable to its trackmen for injuries done to them by negligence of those in charge of its trains is presented by these facts. If this question was to be determined by the...