Lehigh Valley R. Co. v. Scanlon

• Decision Date: 13 February 1919
• Docket Number: 157.
• Citation: 259 F. 137
• Parties: LEHIGH VALLEY R. CO. v. SCANLON.
• Court: U.S. Court of Appeals — Second Circuit

259 F. 137

LEHIGH VALLEY R. CO. v. SCANLON.

No. 157.

United States Court of Appeals, Second Circuit.

February 13, 1919

Kenefick Cooke, Mitchell & Bass, of Buffalo, N.Y. (James McCormick Mitchell, of Buffalo, N.Y., of counsel), for plaintiff in error.

Henry W. Brush, of Buffalo, N.Y., and A. G. Newcomb, of Cleveland Ohio (Henry W. Brush, of Buffalo, N.Y., of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

MANTON Circuit Judge.

The defendant in error, while in the employ of the plaintiff in error, a railroad corporation engaged in interstate commerce was injured on the 10th of December, 1915, and has maintained this action successfully below, recovering damages for a substantial sum. The plaintiff in error maintains a large freight yard at Sayre, Pa., where it has an extensive and complicated system of storage, classification, and switching tracks.

The defendant in error sustained his injuries in what was known as the lower yard, which is approximately 200 feet south of the Sayre depot. The tracks at this point run generally in a northerly and southerly direction, but looking toward the north there is a considerable curve. There are east-bound yards and west-bound yards, with which the defendant in error had to do, and with which we are concerned; one lying partly toward Waverly, in the state of New York, and partly toward Sayre, in Pennsylvania. In other words, the yards cross the state lines.

The defendant in error had been employed in various capacities since 1889 in the service of the plaintiff in error, and since November, 1913, as a switch tender in the yard in question. There was a switch tender's shanty located between the express track and storage track, wherein there was installed a telephone. Engines upon east-bound passenger trains were changed at Sayre, and one of the duties of the defendant in error was to superintend this change of engines. Engines intended for relief of the east-bound trains were placed upon the scale track, and it was the duty of the defendant in error to switch the retiring engine on the various crossovers to the roundhouse, and then make secure the switches to the main track, so that through trains could be operated thereon safely. It was also his duty to go to and from the switch tender's shanty, using the telephone to speak with the next station, Athens, there to learn of the location of the west-bound trains destined for the Sayre yards, and to arrange by telephone as to their disposition upon arrival. Thus, in the regulation of the traffic, he was frequently obliged to pass over the tracks to and from the shanty. There were located immediately in front of the switch tender's shanty, and between it and the east-bound main track, two switch tracks, one known as the express track, and the other as a scale track, over which he was obliged to pass. It appears that for some time there was a sign on the outside of the shanty reading as follows 'To All Concerned: Never permit cars in front of this shanty at any time, as the telephone is here, for the convenience of yardmasters, conductors, and trainmen.'

For some days previous to the day of his casualty, there was maintained upon the scale track adjacent to the shanty, a train of cars without an opening between them, and this made it necessary for the defendant in error to mount and cross over the cars whenever he desired to cross the railroad track in the performance of his duty. The defendant in error spoke to the yardmaster, Schaeffer, calling his attention to this condition, and also to Miller, the conductor of the coach crew, and to Fitzgerald and McCabe, all men in authority, complaining of the conditions, and received promises that this inconvenience would be removed.

On the morning of December 10th, while the defendant in error was putting a relief engine on the north end of the scale track, approximately at the point marked 'clearance post,' Cafferty, a yard conductor in charge of an engine hauling a carload of horses, came down in the direction of the depot upon the east-bound freight leader, which is the track immediately east of the west-bound main train, left his engine, and told defendant in error that he wanted to get across in the hill track before No. 8 train came in. The defendant in error then said, 'You won't be coming back'? to which Cafferty replied, 'No; we will stay in the clear over there,' and the defendant in error stated 'Go ahead.' Cafferty, in making this maneuver of the car containing the horses, pulled the string of cars from the scale track and placed them on the express track, but did not make a cut or opening in front of the shanty, and left them in such a position that they blocked the pathway of the defendant in error to and from the shanty. After train No. 8 had come in and gone, and the defendant in error had fulfilled his duties in regard to it, he saw a freight train coming in the yard from the south. It became his duty then to inform the west-bound yard by telephone and secure a track for this train. He climbed over the cars, thus upon the express track blocking his passage to the shanty, and called up the west-bound yard. As he went across the tracks to meet the incoming freight train, he was again obliged to mount the string of cars which blocked the track. He did so, mounting between the bumpers of two of the cars, passed over, turned, and slowly dismounted, with his back to the yard and his face to the cars. As he reached the ground between the express track and the scale track, he says he looked south, where he last saw McCafferty with his engine, to see if he could see anything of him, and then turned to look north upon the main track, to see if the milk train was approaching thereon, whereupon he was struck by Cafferty's engine, which, unseen by him, left its position far to the south of where he was, proceeded north, and was now returning south along the scale track, tender first, without warning of its approach by bell or whistle. He was struck and run over by the engine, receiving the injuries for which he sues.

The District Judge submitted the question of the negligence of the plaintiff in error to the jury, submitting to them, first, was the plaintiff in error negligent in failing to provide and keep a suitable passageway from the switch shanty to the main track? and, second, was there negligence in failing to give a warning of the approach of the engine after the conductor, Cafferty, told him that the engine would remain on the hill track in the clear? and, third, was there negligence in failing to have some one aboard the engine as it approached and passed adjacent to the shanty, who occupied a position for observation of persons crossing the track so as to give warning of its approach? The court also submitted the question of the assumption of risk of the defendant in error and that of his contributory negligence to the jury.

The District Judge, in submitting the question to the jury permitted the jury to find the plaintiff in error negligent in failing to exercise reasonable care in supplying the defendant in error with a reasonably safe place to work, upon the theory that the way to and from the shanty to the main track was a place for him to work in the performance of his duty, and the failure to provide an opening in the cars adjacent to the shanty, thus requiring the defendant in error to mount upon the coupling or bumpers of the cars to pass over the tracks, was a violation of a duty owed to the defendant in error. While the language of the charge is broad, we find no justification for the complaint of the plaintiff in error in thus submitting this issue to the jury. To violate the rule posted on the shanty, which was promulgated by the plaintiff in error, might be found by the jury to be negligent, and the failure to provide a passageway, thus rendering it hazardous for the employe, making possible the only other alternative, namely, to mount the cars and thus cross the tracks, provided the defendant in error with an unsafe way to pass in the performance of his obligations.

Since this action is maintained under the federal Employers' Liability Law (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp St. Secs. 8657-8665)), a violation of the rule referred to by any employe would be negligence for which the master would be responsible. Indeed, in the absence of a rule forbidding the standing of cars on the tracks adjacent to the shanty, since it was the obligation of the defendant in error to pass across the tracks in going to and from the shanty, it was the duty of his employer, the plaintiff in error, to provide reasonable way of access to it, such as would avoid the hazards of mounting upon the bumpers of the cars. The fact that the cars which blocked the passageway were moved that morning from the scale track to the express track would not relieve the plaintiff in error from...