Mercantile Trust Co. v. Pittsburgh & W Ry. Co.

• Decision Date: 25 April 1902
• Docket Number: 2.
• Citation: 115 F. 475
• Parties: MERCANTILE TRUST CO. v. PITTSBURGH & W. RY. CO. (LAKE, Intervener).
• Court: U.S. Court of Appeals — Third Circuit

115 F. 475

MERCANTILE TRUST CO. v. PITTSBURGH & W. RY. CO. (LAKE, Intervener).

No. 2.

United States Court of Appeals, Third Circuit.

April 25, 1902

Charles Koonce, Jr., and James H. Wilson, for appellant.

John McCleave, for appellee.

Before ACHESON, DALLAS, and GRAY, Circuit Judges.

GRAY Circuit Judge.

On the 18th day of March, 1899, Mattie Lake, by leave of the court filed her intervening petition in the case of the Mercantile Trust Company v. the Pittsburgh & Western Railroad Company then pending in the circuit court of the United States for the Western district of Pennsylvania, in equity. In her petition, she claims in behalf of herself and infant son damages from the receiver of said railway company for the death of her husband, which she alleges was occasioned by the negligence of said receiver in operating said railway.

The decedent, John R. Lake, was, on the 22d day of March, 1898 and for some time prior thereto had been, in the employ of the respondent, as a freight brakeman. On the day mentioned, Lake and his fellow members of the crew of trainmen, at De Forrest Junction (a station on respondent's road about 12 or 14 miles north of Youngstown, Ohio), took charge of a through fast freight train running between Chicago and the East, for the purpose of running it to Bennett (a station on respondent's road near the city of Pittsburgh, Pa.) Between these points, near Carbon station, on the road which respondent was operating as receiver, the main track ran along the southern base of a range of hills which are parallel with said track, and at the point referred to, said track cuts the base thereof so as to form an embankment on the north side of said track about 12 feet high. From said railroad, the hills retreat northward at a steep degree of inclination. On the hillside facing the track are gullies and ravines, which drain about 75 acres. Through the center of it runs a slight embankment, built to support a tramway to the top of the hill, where was an abandoned limestone quarry. This embankment, on one side thereof, deflected the direction of the waters draining the hillside, and on the night of the accident, helped to cause such a concentration of water as made a washout and carried clay and gravel over the tracks of respondent's railroad. The accident, in which decedent lost his life, was caused by this obstruction. One of the allegations of intervener's petition is, that respondent was guilty of negligence, in not appreciating the danger of a washout at the place in question, and in not guarding against it, it being charged that the ditch to carry the water off which came down the hillside, was insufficient, and the culvert through which it was discharged, was much too small.

On the 22d of March, it had rained a great portion of the day, and in the evening there occurred a very heavy rain storm, washing away bridges and causing landslides to occur on respondent's tracks, which interrupted traffic over his road from a station about 8 miles south of Youngstown to Pittsburgh, which included the place of the accident. Between these places are Hazelton and New Castle Junction, about 15 or 16 miles apart, and between them, some 5 or 6 miles east of Hazelton, is Carbon station, near which the accident took place. The chief dispatcher on the day in question was at New Castle Junction. Fast freight train No. 94, coming from the west, was run in two sections, the first section arriving at Hazelton in time to leave there at 8:02, the second section 20 minutes later. The rain of all day and heavy storm of the evening had by that time worked great havoc along the line of the road east and west of New Castle Junction. All admit that it was a heavy rain in the evening, and respondent's witnesses declare that it was a storm of unusual violence. The master reports that there was evidence to show that the amount of rain falling throughout that section of the country, including the place of the accident, was very great, if not unprecedented.

The chief dispatcher at New Castle Junction had learned by 7:30 o'clock that at many places between Lowellville and Allegheny City, including points between Hazelton and New Castle Junction, the tracks had been obstructed by washouts, and that a bridge over Herron's creek was washed out by the flow, thus cutting the main line of the road, and making a detour by a branch road necessary for all trains. The master also reports that there was evidence by the witnesses called in behalf of the petitioner, that there had been obstructions, caused by rain storms, on the track at the place of the accident, at times prior to the date thereof, but that this was denied by the witnesses called in behalf of the respondent. With this knowledge of the serious character of the storm possessed by the dispatcher at New Castle Junction, no notice was given to section 2, although a notice was communicated to the conductor and engineer of the first section, to proceed with caution and look out for washouts and landslides at certain named points. Section No. 1, leaving at 8:02, passed the point of danger safely, but section No. 2, leaving Hazelton 20 minutes later, proceeded at its usual speed, until it reached the obstruction at a point a little distance west of Carbon station. The engine and several cars were thrown from the track, and the petitioner's husband so injured that he died before he was taken from the wreck.

On this general statement of facts, the petitioner complains of negligence on the part of the respondent on three distinct grounds, which are briefly stated as follows:

(1) Ordering the train on which decedent was, to leave Hazelton for New Castle Junction-- a distance of 16 miles-- without in any manner notifying him, or those in charge of the train, of the dangerous conditions prevailing along the road at that time.

(2) Inadequate provisions for the carrying away of surface water accumulating at the place of the accident.

(3) Failure and omission to furnish sufficient employes to inspect and watch the condition of the track and roadbed at the place of the accident, under the circumstances in this case.

No answer or other pleading was filed to the intervenor's petition, and no appearance having been entered by respondent, the intervenor, on the 17th of November, 1899,-- nearly nine months after the filing of her petition, asked that her petition be taken pro confesso. The court overruled this motion, and ordered respondent to file his answer to the intervener's petition 'instanter.' At the same time, the intervener moved the court to order the issues of the case to be tried by a jury. This the court declined to do, and ordered that the case be referred to a special master. On the 30th of January, 1900, the parties appeared before a special master, in pursuance of said order, and respondent, by his counsel, offered to file a plea of 'not guilty,' to which objection was made for the reason that it was not a pleading in accordance with the practice of the federal courts, in a case of this character, which was equitable in its form and character, and should be governed by the rules and practice in equity.

The special master did not pass upon this objection or admit the pleading, at that or any other time during the hearing before him. It was filed, however, on the 7th of April, 1900. At the commencement and close of respondent's testimony, an objection was made by the intervenor to the introduction of any evidence on the part of the respondent, for the reason that no issue was made to which evidence could...