Lehigh Valley R. Co. v. Mangan

Citation278 F. 85
Decision Date14 December 1921
Docket Number43.
PartiesLEHIGH VALLEY R. CO. v. MANGAN.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

The plaintiff in error was defendant below, and is hereinafter referred to as defendant. The defendant in error was the plaintiff below, and is hereinafter referred to as plaintiff. The plaintiff brought this action as the administratrix of her deceased husband, suing, on behalf of herself as widow and her three infant children, to recover damages for the negligent killing of Thomas Mangan the husband and father. The action was brought under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665).

The defendant is a corporation organized under the laws of the state of Pennsylvania, and operates a railroad within the state of New York. The decedent at the time of his death was in the defendant's employ as a conductor in charge of a freight train. The complaint alleges that on August 24, 1917 the plaintiff's intestate was struck by one of defendant's trains near Gardner's run, in the state of Pennsylvania, and sustained injuries which caused his death. It is also alleged that at the time before mentioned the intestate and the defendant were engaged in interstate commerce, and that his death was due to the negligence of the defendant its agents, officers, and employees, and was not due to any negligence of the decedent. The defendant in its answer set up, among other defenses, those of contributory negligence and assumption of risk.

It appears that Mangan had been in the employ of the railroad for 20 years before his death, during 14 years of which he had been a conductor. His death occurred under the following circumstances:

On August 24, 1917, he was the conductor in charge of a freight train which was at a place called Gardner's Run, in Pennsylvania. At that place the railroad maintained two separate tracks running parallel and about four feet apart. One of these tracks was devoted to west-bound and the other to east-bound traffic. Mangan's train was bound east up the mountain. It consisted of about 45 cars, a 'leader engine pulling the train' and a 'pusher engine' pushing it at its extreme rear. While the train was working its way up the mountain, it stopped because a piece of brick of the arch got in between the two sections of the grate of the rear or 'pusher' engine, tipping one grate. This was about 7:30 in the evening and it was getting dark. Mangan was assisting in getting the engine ready to start. The trouble with the engine was all on the side of it next to the west-bound track, and in making the repairs, adjustments, or observations in relation to the trouble with it, it is claimed that it was necessary to do so from the side of the engine abutting on that track.

Mangan's train was stopped to permit an adjustment of the fire grate a clinker having become lodged in it, thus preventing its closing, and thereby permitting burning coals to fall through. The adjustment of the grate was made by one of the crew operating a wrench or shaker bar from the cab of the engine, thereby opening and closing the grate in the familiar manner of 'shaking' a stove or furnace. One or two other members of the crew, including the decedent, stood on the ground between the east-bound track and the west-bound track, watching to see if and when the obstruction should be dislodged. The train was delayed about half an hour while the adjustment was being made. When the adjustment was completed and they were ready to proceed, the engineer upon a signal from a brakeman, who was over on the right-hand side of the engine, moved his engine forward up to the rear end of the standing freight train, blew two long blasts of his whistle as a signal to the head engineer that he was ready to proceed, and started pushing up the slack of the standing train. Meanwhile 'the blower' on the engine was being used to raise the pressure of steam, and the engine was making a great deal of noise in the effort to push forward the 45 standing freight cars, thereby taking up the slack, as the cars had been standing without the brakes being set. As the pusher engine moved forward, the decedent and one of the other employees, who had been on the ground beside the engine, watching the attempts to shake out the obstruction in the grate, moved forward with the engine; the decedent stepping over and walking between the rails of the west-bound track. As the pusher engine was in the act of pushing forward the slack of the standing freight train, a train consisting of an engine and 10 empty Pullman cars came from the east on the west-bound track at a speed of about 30 miles an hour and struck decedent, causing his death.

The accident occurred on a line of the defendant's road known as 'the mountain cut-off.' This cut-off was a much-used line at the time, there being upwards of 20 trains a day each way. These included three scheduled trains and about 20 so-called 'extras,' all freight trains being styled 'extras'; and in addition at times unscheduled trains of passenger cars were run over the line. The negligence claimed on the trial was that no warning was given of the approach of the train on the west-bound track, either by the blowing of a whistle or the ringing of a bell although a rule of the defendant required the bell on the engine to be rung while passing a standing train.

Three railroad employees, who it was claimed, were all in a position to hear the bell if it had been rung, and whose hearing was good, testified that they neither heard any bell rung, nor any whistle blown, nor any signal or warning given of the approach of the train, but that it was run upon Mangan without any notice whatever of its approach. Three witnesses called by the defendant, and who were in the employ of the defendant and were on the west-bound train, testified that the bell of the engine drawing the west-bound train was ringing constantly as it passed the freight train; and two other witnesses, employees of the defendant, testified that as the train passed they heard two long and two short blasts of the whistle blown.

The jury found a verdict for the plaintiff in the sum of $16,000.

Allen McCulloh, of New York City (Clifton P. Williamson, of New York City, of counsel), for plaintiff in error.

Austin Flint Gibbons, of New York City (John C. Robinson, of New York City, of counsel), for defendant in error.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

ROGERS, Circuit Judge (after stating the facts as above).

The defendant claims that an error was committed in leaving it to the jury to find whether the engine on the west-bound track in passing the freight train blew its whistle or rang its bell. It is said that there was no such conflict of testimony as warranted the submission of any question to the jury. In calling attention to the testimony as to the blowing of the whistle, the District Judge told the jury that, putting himself in their place, he thought he should conclude that the whistle was in fact blown. He added:

'I can see no reason to discredit the testimony of the crew of the leader engine, but it seems to me that it might well have been owing to the noise of the exhaust that the whistle was not heard by the others who were very close to the whistle itself. But that is a question which I do not take from you. It is a question of fact for your decision. It is perhaps conceivable that between the puffs of the engine the sound of the whistle would be heard if it had been blown.'

As to the ringing of the bell he said:

'The question on which most emphasis was made by the plaintiff is the question of the bell itself, and on that the testimony of the leader crew is silent. Apparently they did not hear the bell as it passed. The crew of the passenger engine, as you will remember, did testify that the bell was ringing, and was ringing from the mountain top down. The question of fact as to whether that was done or not I leave entirely to you, without any indication as to my judgment of mind upon the subject.'

If the witnesses who testified that the bell was not rung or the whistle sounded were so located that they would probably have heard either the one or the other, it was proper to submit their testimony to the jury. Chicago & N.W. Ry. Co. v Andrews, 130 F. 65, 70, 64 C.C.A. 399. It is, of course, conceded to be an established principle of law that, where witnesses who were in a position to hear testify affirmatively and positively that they did hear a bell or whistle, the testimony of other witnesses that they did not hear it raises no conflict of testimony for submission to a jury unless it clearly...

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