McCrowell v. Southern Ry. Co.
| Citation | 20 S.E.2d 352,221 N.C. 366 |
| Decision Date | 05 June 1942 |
| Docket Number | 750. |
| Parties | McCROWELL v. SOUTHERN RY. CO. et al. |
| Court | United States State Supreme Court of North Carolina |
This action is brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., to recover damages for a personal injury which the plaintiff alleges he sustained through the negligence of the defendant while he was employed as a yard clerk and engaged in the duty of checking freight cars in defendant's yard in Winston-Salem. That the plaintiff was an employee, engaged in interstate commerce, is admitted.
Summarizing from the evidence the facts bearing upon the appeal, the following are pertinent:
There are two freight yards with which the evidence is concerned--the lower yard, some distance to the west, and the Salem yard, in which the accident occurred. The Salem yard and its vicinage are typical of the usual freight yard, with tracks laid out and connected by switches so as to facilitate operations necessary to the breaking up of incoming trains distributing the cars which compose them to their proper places to be unloaded or rehandled, and the making up of outgoing trains, or reassembly of cars in their proper order therein. Parts of trains handled together have been referred to as "strings" or "cuts," and, with engine attached, "trains." Looking across the yard there are eleven of such tracks, in fairly close proximity to each other, exclusive of the outside passenger track. The "lead" line connecting with the main freight line or "feed" line makes a continuous passage through the yards and is known as the switching line, because the several tracks above mentioned branch off from it or from other tracks with which it is connected. This "switching lead," sometimes called the freight main line, is used as the main line from the lower yard to the Salem yard. Coming from the lower yard, it is connected with track No. 1 and this, in turn, by switch with track No. 2. All of the tracks, except the passenger track just mentioned, converge into the main freight line or feed line to the east.
The switches were equipped with the usual targets, automatically moved when the switch is changed, so as to show by means of colors whether the switch is lined up to let traffic into the track.
On the day of the accident, a crew-- designated as the 3 o'clock crew--was engaged in taking cars out of the track further east in the yard and bringing them westwardly into the scales track to be weighed, with a view to putting them somewhere else in the yard. This required plaintiff to be on hand and conveniently stationed in the yard to check these cars as they passed against a switch list with which he had been supplied. These cars would pass over the scales track to be weighed and the tonnage noted by the plaintiff. He had been informed by Samuel, the yardmaster, that a cut of cars would come in from the lower yard some distance west from the Norfolk & Western connection, but he did not know when. Neither of these movements was scheduled for a particular time.
Plaintiff went into the yard to a point somewhere between tracks Nos. 2 and 3 prepared to check the cars handled by the 3 o'clock crew coming from the east. This train came in on the scales track, pulled by an engine, and plaintiff proceeded to check the cars as they passed. While so engaged the train or cut of 30 cars, pushed by an engine and coming from the west, was let into the yard by the yardmaster, Samuel, over a switch leading it into track No. 2, and proceeded on the latter track toward the train approaching in the opposite direction from the west, which plaintiff was checking. The string or cut of 30 cars coming from the west, and designated by the witnesses as a train, was pushed by an engine, and was in continuous movement from the lower yard to and into the Salem yard and until it came into contact with plaintiff.
At that time plaintiff was standing between tracks No. 2 and No. 3, or between the rails of track No. 2. His own testimony is to the effect that he was standing between tracks No. 2 and No. 3, and a little nearer track No. 2. He was busy with the checking of the cars in the train coming from the east and had his back to the train approaching from the west, when he was knocked down by the lead car, several cars passing over his leg and practically severing the foot above the ankle.
There is evidence tending to show that it was customary for the engineer to blow four blasts of a whistle before entering the Salem yard with such a train; and while the evidence is conflicting on this point, there is evidence tending to show that this signal was not given. There was no head brakeman or other brakeman upon the lead car of the cut of 30 being pushed into the Salem yard. There were brakemen upon the train, one about half way its length and the other on the second car from the engine. The brakeman riding the car near the middle of the train had gotten down at some point near the switch to No. 2 track, and the remaining brakeman testified that from his position he could not see the plaintiff at the time the forward car struck him, nor could he see the engine which was pulling the train coming from the east. He states that his attention had been attracted by Mr. Samuel, Mr. Byrd and Mr. Baker--Mr. Byrd and Mr. Baker had gotten off the train--who were in conversation near the tracks, and that he finally got a signal which he calls a "wash-out" signal, or emergency signal, from a crew member of the other train, in consequence of which the train which hit plaintiff was signed down.
S. G. Hardister, fireman on the train operated by the 3 o'clock crew--that is, the train on the lead track headed west--saw the cut of 30 cars coming down-grade while his train was going up-grade, making steam. The 30 car cut was being shoved eastwardly into the yard and there was no brakeman or trainman on the front of the leading car. Hardister testified that he saw plaintiff a minute or two before the train struck him, but did not actually see it strike him, and that he was then standing between the rails of No. 2 track. At an exclamation from the engineer, "They've run over Eddie," Hardister jumped down off the train and pulled plaintiff clear of the track. This witness saw Mr. Wilkinson, a member of the 3 o'clock crew, trying to stop the train operated by the 4 o'clock crew by giving a "wash-out" or emergency signal. "The engineer and fireman of the 4 o'clock crew could not see the end of their train as it was being shoved into Salem yard because of thirty cars around a curve."
The plaintiff testified that there was much noise at that point in the yard; that the westwardbound train was going upgrade and making steam, and that the eastbound train being pushed into the yard was going down-grade and coasting.
The plaintiff introduced certain rules from the rule book of the company, as follows:
Rule No. 103: "When cars are pushed by an engine, except when shifting or making up trains in yards, a trainman must take a conspicuous position in the front of the leading car."
"Note: The exception covers the making and breaking of trains only, and not extended movements within yards."
Rule No. 1311: Rule No. 1321: "They must require forward brakemen to take proper positions on the train, whenever it is necessary."
Bearing upon these rules, the plaintiff offered the testimony of a number of experienced railway employees, some of them employees of the defendant of 19 or 20 years standing, who testified that they were familiar with Rule 103, and proceeded to interpret it according to its general understanding and usage among railway men. This evidence tended to show that the movement of the train by the 4 o'clock crew from the lower yard into the Salem yard and within the Salem yard was an "extended movement" within the rule. There is further testimony to the effect that such an extended movement ended only when the engine was uncoupled from the cars.
Further bearing upon the rule, the evidence tended to show that the 4 o'clock crew which brought this cut of cars in from the lower yard had no further duties with respect to it after placing the "cut" in its designated position in the yard; and that it would then be taken by a different crew and worked that is, broken up, and the cars distributed or reassembled in other trains as might be convenient.
It was elicited from the plaintiff on cross-examination that he knew of the custom for the brakemen to dismount from the train some 40 or 50 feet after passing the switch point, but plaintiff did not regard that custom as applying to a movement of this kind. His testimony on this point is as follows: ...
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