Miller v. Central R. Co. of New Jersey, 307.

• Citation: 58 F.2d 635
• Decision Date: 16 May 1932
• Docket Number: No. 307.,307.
• Parties: MILLER v. CENTRAL R. CO. OF NEW JERSEY.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

58 F.2d 635 (1932)

MILLER v. CENTRAL R. CO. OF NEW JERSEY.

No. 307.

Circuit Court of Appeals, Second Circuit.

May 16, 1932.

Charles E. Miller, of New York City, for appellant.

Alfred T. Rowe, of New York City (Sol Gelb and Anthony Sansone, both of New York City, of counsel), for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The deceased was a locomotive engineer employed upon a work train, a "work extra," of the defendant, moving east on a single track between a station known as Wareton, in New Jersey, and another known as Tom's River. It had been used to pick up spent rails which had been laid along the roadbed, and was carrying a gang of section men, who had been working on the track, and pulling their tool and camp cars, which had been added to the train. The deceased had turned over the operation of the locomotive to the fireman, as the rules allowed, if done under his supervision, and was himself firing the engine, on the left side. The driving cab was midway of the boiler, the firing was done at the rear, close to the tender, where the deceased stood. There was a brake at the rear by which he could have stopped the train from where he was.

An extra freight train, which was moving west from Tom's River, saw the "work extra" coming at a speed of about twenty-five miles an hour, stopped, and blew its whistle, but the fireman of the "work extra" did not see or hear the freight in time, and collided with it head on, killing the deceased. The reason for the fireman's failure to stop was that the road at the place in question turned to the left, so that he could see the track ahead for only three hundred feet, — unless he leaned out at the side, — and this was too short a distance. Had the deceased been watching from the left side he would have seen the extra freight, and could have stopped the train; his attention was apparently occupied by his firing.

Rule 87 of the road provided that "inferior" trains must "keep out of the way of opposing superior trains, and failing to clear main track by the time required by rule must be protected by Rule 99." Rule 99 provided that trains, when stopped and if in danger of being overtaken, must send out a flagman behind, with torpedoes or fusees. The front of a train must be protected "in the same way when necessary by the front flagman or trainman." A moving train which may be overtaken must be protected by a flagman at the rear as may be necessary, who must in any event throw off fusees. No protection was provided by flagmen for moving trains likely to be met head on, and obviously none could be, unless they move at a man's pace. The evidence of the defendant's witnesses that the rule required a flagman to walk ahead of a moving "work extra" was absurd, if the train is to move at any substantial rate. Moreover, rule 99 itself is not susceptible of such an interpretation; flagmen are to be put out only in front of a train not in motion. Rule 105 provided that "both the conductor and the engineman are responsible for the safety of the trains and the observance of the rules," though the engineman must obey the instructions of the conductor in starting trains "unless they endanger the safety of the train or involve a violation of the rules" (rule 1400). A "work extra" is "inferior" to all other trains, including an "extra freight"; it must "protect itself against extras." Unless the conductor's order changed this, the deceased was bound to "protect" the "work extra" against the "extra freight."

It did not appear whether or not the conductor at Wareton learned from the dispatcher where the freight train was, but he told the fireman and the engineer to start up for Tom's River without disclosing its whereabouts, if he knew it. The extra freight was made up of two cars and a caboose; the "work extra," of eleven or twelve cars. There were several sidings between Tom's River and Wareton, on which the extra freight could have been shunted, but only one that would hold the "work extra." A regular passenger train was due at Tom's River at 2:12 and the "work extra" left Wareton at 1:30; the distance between the two stops is twelve miles. The complaint charged negligence on the conductor's part in ordering the deceased to go to Tom's River without finding out whether there was any opposing train, and in causing the deceased to rely upon the implied assurance that none would be met on the way. The only question at issue is whether the judge should have taken the case from the jury.

If the "work extra," which had finished its work, was to run without stop between Wareton and Tom's River, a "running order" should have been issued, which would have given it precedence over the extra freight; it had no right to make such a run otherwise. Nobody suggests that there was such an order, and the conductor violated the rules by his order to the deceased to go to Tom's River. The defendant's train rule instructor was explicit as to this. Aside from this formal violation, the order was improvident anyway, unless the position of the freight was learned; it might be met en route, for it ran every day though not on schedule; and while the meeting need not be dangerous, it would involve some delay, especially if it occurred between sidings. The "work extra" at its maximum speed had only eight minutes to spare to reach Tom's River with five minutes clearance of the passenger train; if it met the freight between sidings it was easily possible that more time might be consumed before it could move on. The defendant suggests that it might have been split among various sidings to let the passenger train pass; but this too would take time, and, in combination with the necessity of finding a siding for the freight itself, created a situation which a jury might find altogether impracticable with the time at its disposal. We should think so ourselves. Thus the conductor's order might be considered as a fault; it certainly contributed to the collision.

The defendant answers that even so, the deceased was equally at fault, for he should not have obeyed the conductor, as he knew that he had no "running order"; copies of all orders must go to the engineer as well as to the conductor. The only evidence for this is that the working orders in evidence, on which the "work extra" and the "extra freight" were operating, contained at their bottom the legend, "each person addressed must have a copy of this order." The defendant...