New York, N. H. & H. R. Co. v. Murphy

• Decision Date: 14 April 1913
• Docket Number: 201.
• Parties: NEW YORK, N.H. & H.R. CO. v. MURPHY.
• Court: U.S. Court of Appeals — Second Circuit

204 F. 420

NEW YORK, N.H. & H.R. CO. v. MURPHY.

No. 201.

United States Court of Appeals, Second Circuit.

April 14, 1913

J. F Berry and Wm. C. Mitchell, both of New Haven, Conn., for plaintiff in error.

D. G Perkins, of Norwich, Conn., and J. S. Murphy, of Lowell Mass., for defendant in error.

Before LACOMBE, WARD, and NOYES, Circuit Judges.

WARD Circuit Judge.

John Murphy, the plaintiff, a citizen of Vermont, brought this suit under the Employer's Liability Act of Congress of April 22, 1908, to recover damages of the New York, New Haven & Hartford Railroad Company, a corporation of Connecticut for the death of his intestate, Charles J. Murphy, who was also his son.

April 2, 1910, the deceased was flagman of regular freight train 772, and while sitting in the caboose was killed by a rear-end collision with extra wrecking train 413. The complaint charges the defendant with negligence in failing to so dispatch the trains as to prevent the collision, and in running No. 413 at such great speed and at such a short interval after 772 that it overtook and collided with 772. The defendant's road between Norwich, Conn., and Worcester, Mass., is a single track, and on the morning in question three trains left Norwich bound north as follows: No. 772, a regular freight train, at 5:50 a.m. to Worcester; No. 704, a regular passenger train, at 6:08 a.m. to Worcester; No. 413, an extra wrecking train, at 6:22 a.m. to Plainfield, Conn. Before leaving Norwich, a written telegraphic order from the train dispatcher's office at Hartford was given to the conductor and engineer of No. 772 and to the engineer of No. 413 reading:

'Eng. 410 four ten will run extra Plainfield to Norwich with right over No. 772 seven seventy-two Plainfield to Jewett City and will meet extra 413 four thirteen north at Jewett City.'

Train 410 was an extra south-bound freight. The meaning of the order was that 772 and 413 were to go to Jewett City north-bound, and there meet and let pass 410 south-bound. This last train is of no further importance in the case. Train 731 was a regular passenger electric train running on the defendant's track from a point north of Jewett City south-bound to Taft Station, scheduled to meet 704 at Jewett City and having preference over 772 and 413.

Some of the relevant rules of the defendant are:

83. A train must not be run on single track from any point until the arrival of all trains in the opposite direction of the same or superior class which are due by time-table at or before its schedule time of leaving. (See rule 86.)

86. An inferior train must keep out of the way of a superior train.

88a. When a train of inferior class meets a train of superior class on single track, the train of inferior class must take the siding and clear the train of superior class ten minutes, unless otherwise provided for in the timetable.

90. An inferior train must keep at least ten minutes off the time of a superior train in the same direction, unless otherwise provided for in the time-table.

91. No train or section of a train shall follow another train within ten minutes, except as provided for on the time-table, unless some form of block signal is used.

99. When a train stops or is delayed under circumstances in which it may be overtaken by a following train, or needs protection, flagman must go back immediately, with danger signals, a sufficient distance to insure full protection.

If upon a level or up grade, he will fasten one torpedo on top of rail at least 12 telegraph poles from the rear of his train then go back 6 poles farther and fasten two more torpedoes on top of rail, one rail length apart; if on a down grade, he will fasten one torpedo on top of rail at least 18 telegraph poles from the rear of his train, then go back 18 poles farther and place two more torpedoes on top of rail one rail length apart; after doing this he may return to a point between the torpedoes placed and wait for any approaching train prepared to display proper signals in full view, using every effort to attract attention in season to stop it. When recalled, he will look and listen for any approaching train, and, if none is located, take up the single torpedo nearest the train (leaving the other two), and return. If recalled before placing torpedoes the required distance, a fusee should be lighted and left on the track. If called in after the train which he is protecting has taken a siding to allow a following train to pass, he will leave no torpedoes or fusee. Should the grade be...