O'Neil v. Pittsburg, C, C. & St L. R. Co.

• Decision Date: 18 March 1904
• Citation: 130 F. 204
• Parties: O'NEIL v. PITTSBURG, C., C. & St. L. R. Co.
• Court: U.S. District Court — Western District of Kentucky

130 F. 204

O'NEIL v. PITTSBURG, C., C. & St. L. R. Co.

United States Circuit Court, W.D. Kentucky.

March 18, 1904

A flagman, injured by an engine while he was crossing the tracks of his employer's road in the dark when leaving his station, held chargeable with contributory negligence which precluded his recovering damages from the railroad company, where he neither stopped before stepping on the track, nor listened for the train, which he had previously seen approaching.

This is an action for damages for personal injuries. The plaintiff was a flagman stationed in the midst of the railroad tracks at the intersection of Fourteenth and Rowan streets, in this city. Three or more parallel tracks of the defendant's road ran northwardly along Fourteenth street to the bridge across the Ohio river, a few hundred yards away. Plaintiff usually left his station at 6 p.m., after the local train called the 'Dinkey,' running between Louisville, Ky and New Albany, Ind., had 'pulled out.' Probably thinking this had occurred, at 6 p.m. on the 28th day of November, 1900, plaintiff put away his flag, got his coat and, his day's work being done, started westwardly across the tracks on that side, on his way home. Some minutes before starting, however, he had seen a freight train on the bridge, coming southwardly towards him, but, apparently forgetting this, he approached the tracks on which the train was moving, and without stopping or listening, and apparently without looking, though he says it was then too dark to have seen the train if he had looked, and also that a car on an intervening track obscured the view, he stepped upon the second track, and at the instant of doing so was struck by the slowly approaching freight train, and injured.

W. M. Smith, for plaintiff.

C. H. Gibson, for defendant.

EVANS District Judge (after stating the facts as above).

The testimony having been concluded, the defendant has moved the court, upon the whole case, to instruct the jury to find for it, and urges the motion upon three grounds: (1) It insists that the evidence does not show any negligence upon its part to bring it under any obligation to compensate the plaintiff for the injuries sustained; (2) that, even if the defendant was negligent, the plaintiff would not have been injured if he had not contributed to it or brought it on by his own negligence; and (3) that any negligence, if there was any, which caused the injury to the plaintiff, was that of his fellow servants, and therefore did not impose any liability on the defendant. I have examined these contentions as carefully as existing conditions would permit, and will briefly state my conclusions.

I do not doubt that the plaintiff and the engineer and fireman on the engine by which he was hurt were fellow servants. It is quite true that there is conflicting testimony upon several points, such, for example, as whether it was so dark when the plaintiff was injured that he could not see the engine when he went to the track on which it was running, although it may be remarked that when all of the testimony is considered it would be difficult to have much doubt on that point. There was conflict as to whether the engine and tender had been detached from the train before the plaintiff was struck; also as to whether the so called 'Dinkey' train had passed to the north of Rowan street when the injury occurred; also as to whether there was a light on the tender which struck plaintiff, which could have been seen as it approached Rowan street; also as to whether the bell was ringing as it approached that street; also as to whether there were cars standing near Rowan street on what is called the 'main' track of the railroad. There may be other points of conflict, and there might be room to doubt as to whether the 'Dinkey' train, as it moved out, made a noise so dominant as to drown any made by the incoming freight train or the engine which inflicted the injury, and which was moving with steam shut off. But there is no conflict upon several points: None that the point where plaintiff worked was in the intersection of Fourteenth and Rowan streets, where three parallel tracks ran east of him and three west of him; none that the plaintiff did not stop or listen when he approached and went upon what is called the 'bridge' track, on which the freight train was moving; nor any that he had seen that train when north of Portland avenue and moving southward; nor any that he saw certain persons get off of it and go with lanterns over towards the 'dinky' train; nor any that he was perfectly well informed as to the entire local situation, and knew its dangers; nor any that he, like those upon the freight train or engine and tender, were all employees of the defendant. The last proposition, indeed, is in no way denied, though it is insisted that the plaintiff's duties as an employee had ceased for the day, just before the accident, and that he was then off duty and on his way home, and that these facts take his case out of the usual rule as to fellow servants. His statements bearing upon this subject have been copied from the stenographer's notes, and are as follows:

Extract from direct examination of O'Neil: 'Q. By Mr. Smith What were your hours of labor there? A. From 6 o'clock in the morning until 6 o'clock in the evening. Q. Did you leave your work there before your time was up in the evening there on that day? A. No, sir; I never did leave there until the dinkey at 6 o'clock would go out. Q. How do you know you left after 6 o'clock on this 28th of November, 1900? How do you know it was after 6 o'clock? What were you governed by? A. I was governed by the dinkey, and by the bell that I heard ring, and whistles. Q. What bell was that you speak of? A. St. Patrick's bell; it rings at 6 o'clock every night of the year. Q. You were governed by that bell and the going out of the dinkey? A. I was governed by the dinkey; I could not leave until the dinkey should go out. * * * Q. By Mr. Gibson: You went on duty at 6 o'clock in the morning, and you had remained on duty until the 6 o'clock dinkey went out, did you? A. Yes, sir. Q. If it was delayed, you had to stay there, didn't you? A. Yes, sir; I had to stay there; I would be discharged if I would go home. Q. This evening you say you waited until the 6 o'clock dinkey had crossed north over Rowan street? A. Yes, sir. Q. Then you put out your lamp? A. Yes, sir. * * * Q. As long as you are there on the premises, you are supposed to be on duty, are you not? A. Certainly. Q. Until you get clear off it is your duty to look out for all trains that come there, is it not? A. No, sir; I was done at 6 o'clock. There was no flagman there at night. Q. But if,...