Kemp v. Del., L. & W. R. Co.

• Decision Date: 19 November 1923
• Docket Number: No. 25.,25.
• Citation: 122 A. 731
• Parties: KEMP v. DELAWARE, L. & W. R. CO.
• Court: New Jersey Supreme Court

122 A. 731

KEMP

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

No. 25.

Court of Errors and Appeals of New Jersey.

Nov. 19, 1923.

(Syllabus by the Court.)

Kalisch, Ackerson, and Van Buskirk, JJ., dissenting.

Appeal from Supreme Court.

Action by Arthur A. Kemp, administrator of the estate of Michael John Kemp, also known as John Kemp, deceased, against the Delaware, Lackawanna & Western Railroad Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Emil J. Hoos, of Plainfield (W. S. Angleman, of Plainfield, of counsel), for appellant.

Frederic B. Scott, of New York City, for respondent.

KATZENBACH, J. This is an action instituted by the administrator of the estate of Michael John Kemp, against the Delaware, Lackawanna & Western Railroad Company, to recover damages for the death of Kemp, who was an employee of the railroad company. The action is brought under the federal Employers' Liability Act¹ At the trial held at the Union circuit the plaintiff was nonsuited. From the judgment of nonsuit the plaintiff has appealed.

Kemp was a brakeman. On August 14, 1920, he was a member of a drill crew working in the Cheektawaga yard of the railroad Company, located near Buffalo, N. Y. The crew consisted of an engineer, fireman, a conductor named Smith, and two brakemen, Kemp and Kathen. This crew, about 4:30 a. m. on the day mentioned had charge of a train or draft of five cars comprising an interstate shipment. These cars were taken by the crew to an icehouse in the yard to be iced. After placing the cars at the icehouse, Smith, the conductor, ordered Kemp to "line the iron for 16," that is, to throw a switch so that the cars after being iced could pass on the track known as track No. 16.

The switch to be thrown was some 2,000 feet eastwardly from the icehouse. Kemp walked to the switch and threw it, thus enabling the cars to pass to track No. 16. The switch when closed to traffic moving eastwardly showed a green light. When the switch was open to admit cars over the track it showed a yellow light. The yellow light, soon after Kemp had been ordered to open the switch, was visible at the icehouse indicating that the switch had been thrown by Kemp, presumably in obedience to the order given him. Soon after the switch was thrown the cars were pushed by the engine towards track No. 16, cut from the engine, and passed to their destination on track No. 16.

A short time after this movement the body of Kemp was found on track No. 16, about 70 feet from the switch, badly mutilated, the head lying between tracks 16 and 17. There had been no other movement of cars at this point, so that the only inference which can be drawn from these facts is that Kemp, after throwing the switch, stood between the rails of track No. 16 and was struck by the draft of cars which were moving at the time at a speed of from 4 to 5 miles per hour. There was no duty which required Kemp to remain on the track after throwing the switch. Kemp had been informed by Smith, at the time of being given the order to throw the switch, that the cars were to be put on track No. 16. The plaintiffs testimony as to the occurrence of the accident was given by Smith. In addition to the facts stated, Smith testified that when he had, entered the employ of the railroad company the yardmaster had instructed him to have a man on the rear end of the train backing down from the icehouse at all times, "to keep from running into anybody coming down there, or anybody running into us coming out." It also appears that in making a movement of this character the conductor is usually stationed on the top of the leading car, while the second brakeman rides on the last car which is nearest to the engine, so as to be in a position to cut off the draft of cars from the engine. On the day of the accident there was no brakeman on the leading car as the second brakeman, Kathen, had fallen asleep and could not be found by Smith when it was time for the movement to be made. This required Smith to be on the car next to the engine to cut the cars, leaving no one to stand on the leading car.

Upon the conclusion of the plaintiff's testimony, counsel for the defendant moved for a nonsuit on three grounds: First, that the alleged negligence of the defendant was not the proximate cause of the death of the deceased; second, the deceased assumed the risk of the happening of the accident; and, third, there was no negligence of the defendant shown.

The motion was granted, and a Judgment of nonsuit subsequently entered.

The argument of the appellant is that the railroad company was negligent in shunting the cars to track No. 16 without having stationed on the top of the leading car a brakeman with a lantern to warn Kemp of the approach of the train. This was neglect for which either Smith, who directed the movement of the train without this precaution being taken, or Kathen, who fell asleep, was responsible.

It would seem that the evidence in this case was insufficient to show a custom in the Cheektawaga yard to place a brakeman on the leading car in executing the train movement made in this case for any other purpose than to warn members of the public and employees not engaged in the movement of the train of its approach where their presence ought to be anticipated, as the only testimony on the subject is that of Smith, who stated that the purpose of placing the man on the leading car was "to keep from running into anybody coming down there, or anybody running into us coming out" This applies only to those who would have no knowledge of the proposed movement of the train. It does not apply to one who knew what the movement of the train was to be. Kemp had been informed that the cars at the icehouse, which he had assisted in placing there, would be placed on track No. 16, and he had been directed to throw the switch to make the movement possible. He did so, and then remained on the track over which the cars were to pass when there was no duty for him to perform which required his presence on the track.

There is no evidence in the case which shows any custom that one possessed of the knowledge of Kemp as to the proposed movement of the train should be further warned. There was then no duty on the part of the railroad company to have, so far as Kemp was concerned, a brakeman on the leading car. If the railroad company was under no such duty, then it was not negligent in its relations to Kemp, and the trial court was justified in nonsuiting the plaintiff on the ground of failure of proof of negligence, as negligence must be proved under the federal Employers' Liability Act to recover damages. Foley v. New York, Ontario & Western Railroad Co. (N. J. Err. & App.) 116 Atl. 781.

The case of Hines, Director General, v. Kesheimer's Administratrix, recently decided in the court of Appeals of Kentucky, during the present year, and reported in 198 Ky. 580, 249 S. W. 1001, is identical in the facts presented with the case under consideration. Kesheimer was a brakeman. It was his duty to line up switches for the placing of cars upon certain tracks. He was, of course, informed of the destination of the cars before each movement. One night his conductor gave him orders for the placing of cars on a certain track. He lined up the switches. The conductor gave orders to the engineer to move the train. The cars were shunted toward the switch. A short while thereafter the deceased was found. He had been struck by or fallen from or under the draft of cars. Negligence was alleged in shunting the cars at night without any lights or employee on the cars to warn persons in the yard. A verdict was obtained. On appeal this was set aside. The court in its opinion said:

"He [Kesheimer] was sent to set the switches in order to let these cars go on a certain track; he set the switches, with the knowledge that the cars were coming, and it was certainly his duty, without further warning, to keep out of their way. We are therefore confident there was no negligence toward deceased, in failing to have lights or a man on the end of these cars, although this would have been negligence to persons otherwise engaged and not thus informed, and whose presence ought to have been anticipated."

But there is another aspect of the case which seems to us controlling. Was there under the evidence any negligence of the defendant shown which was as a matter of law the proximate cause of Kemp's death? Assuming a custom to have been proved broad enough to include the duty of warning members of the drill crew of the movement of the draft by placing a brakeman with a lantern on the leading car, was the failure to do this the proximate cause of the accident? Damages to be recovered must always be the natural and proximate consequences of the wrongful act complained of. If a new force had intervened which of itself is the cause of the accident, then the first must be considered as too remote. For the negligence to be the proximate cause it must be the natural and probable consequences of the negligent act which under the circumstances an ordinarily prudent person ought reasonably to have foreseen might probably occur as the result of the negligent act. Conceding Smith, the conductor, to have been negligent in directing the movement of the draft of cars to track 16 without a brakeman with a lantern on the leading car to give warning of the approach of the draft, and conceding the railroad company's full responsibility for the consequences of such negligence, Smith's act did not put Kemp in a place of peril. Kemp knew the train was coming on the track on which he was standing. He knew that if he remained on the track he would be struck. He had ample time to leave the track and place himself in a place of safety. After he threw the switch it was his subsequent reckless conduct in remaining upon the track in disregard of his own safety, when he knew the train was coming, which was the sole and proximate cause of the accident resulting in his death....