New York, C. & St. L.R. Co. v. Niebel

• Decision Date: 12 June 1914
• Docket Number: 2462.
• Parties: NEW YORK, C. & ST. L.R. CO. v. NIEBEL.
• Court: U.S. Court of Appeals — Sixth Circuit

214 F. 952

NEW YORK, C. & ST. L.R. CO. v. NIEBEL.

No. 2462.

United States Court of Appeals, Sixth Circuit.

June 12, 1914

[Copyrighted Material Omitted]

C. A Seiders, of Toledo, Ohio, for plaintiff in error.

H. W Fraser, of Toledo, Ohio, for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and SESSIONS, District judge.

DENISON Circuit Judge (after stating the facts as above).

The jury was instructed that, as matter of law, upon the trial record, Niebel was guilty of contributory negligence; but that, under the Employers' Liability Act, his negligence and that of the railroad (if any) through other employes should be compared, and, if the other negligence was greater than his, a verdict should be rendered for plaintiff; the total actual damages being diminished in proportion to the relative negligence of the two parties. Since the case was tried, the Supreme Court, in Norfolk Co. v. Earnest, 229 U.S. 114, 121, 122, 33 Sup.Ct. 654, 57 L.Ed. 1096, and Grand Trunk Co. v. Lindsay, 233 U.S. 42, 47, 49, 34 Sup.Ct. 581, 58 L.Ed. . . ., has interpreted the act to mean that the defendant is liable, if through other employes it is guilty of any causative negligence no matter how slight in comparison to that of plaintiff, and that the total damages should be proportioned between plaintiff and defendant according to their respective fractions of the total negligence. In so far as the interpretation of the statute by the trial judge was not in accordance with these later decisions, the error was not prejudicial to defendant, and affords no ground for reversal.

We agree with the trial court that plaintiff was entitled to go to the jury upon the issue whether Gulick was negligent. It is the railroad's contention that Gulick had the right and was charged with the duty to manage his train on the supposition that the employes on the train ahead would obey the rules, and in full reliance that if that train stopped on the main track a flagman would go back for its protection. Without accepting this contention at its extremest force, we may grant that Gulick had this right and carried this duty; but they constitute only the prima facie situation. The expectation that he would be duly flagged if the train ahead stopped on the main track was one of the things which Gulick rightfully had in mind in determining the handling of his train; but he could not close his mind and his eyes and his ears to everything else. He was bound to use due care in all respects. This precise problem is more fully considered in our opinion in Pennsylvania Co. v. Cole, 214 F. 948, 131 C.C.A. 244, this day filed. It is unnecessary to speculate what all the other elements may be which Gulick was bound not wholly to disregard or forget; and this is so because one sufficient to sustain the submission is found in Gulick's proximity, known and understood by him, to the switch which he was under orders to take. Regardless of any signals whatever, it was his duty to have his train under such control that he could stop before reaching the switch leading into the siding. He knew that he was under orders to take this siding; that the opposing train might be waiting on the main track just beyond the switch; and that Niebel's train might have been delayed in such a way as to leave it still on the main track. He knew that he could not depend upon seeing lights as usual, because many had been blown out, and such as were burning could be seen only a short distance. He knew also when he passed a point 1,600 feet from the switch. His own train was perhaps 1,400 feet long, carrying 33 loaded cars. Under these circumstances, the weather conditions intensified his duty to be running slowly and carefully when he was within 700 or 800 feet of the place where he must stop. Gulick fully recognized this duty; he testified that he knew just where he was and had slowed down to a speed slow enough to enable him to stop without difficulty at the switch. He does not state this speed, but he says that, while he would have stopped before he reached the switch, he could not stop in the distance, which he estimates at 200 or 300 feet, at which he could and did see the lights on the caboose ahead. Is there any evidence to justify a jury in disbelieving Gulick's story as to his speed and his care at this point, and to indicate that, as plaintiff claims, Gulick was running at a speed which, at this point and under these circumstances, was recklessly great? Such evidence is found only in the details of what happened when the collision occurred. There were circumstances tending to show that the speed was as low as Gulick claimed or else different results would have followed the collision. Other circumstances tended to show that the speed was much higher-- perhaps 30 miles an hour-- or else some of the actual results of the collision could not have happened. This issue was peculiarly one for the jury; and we think the evidence raised an issue of Gulick's negligence proper to be submitted.

The only alleged error in the admission of evidence which justifies discussion is that relating to rule C-14, which reads:

'One long, followed by three short, blasts of the whistle is the signal for the flagman to go back and protect the rear of the train.'

The engineer of Niebel's train gave no such signal. We need not consider whether Niebel could charge negligence against the company based on the failure to give this signal; because there was no such claim in the petition. We agree with the court below in its view that the absence of this signal could not have relieved Niebel from the charge of...