Norfolk & W. Ry. Co. v. Gesswine

• Decision Date: 17 March 1906
• Docket Number: 1,443.
• Citation: 144 F. 56
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: NORFOLK & W. RY. CO. v. GESSWINE.

144 F. 56

NORFOLK & W. RY. CO. v. GESSWINE.

No. 1,443.

United States Court of Appeals, Sixth Circuit.

March 17, 1906

This was an action for negligently running over and killing Henry Gesswine, the intestate of the defendant in error. Gesswine was a section hand in the employment of the railroad company at the time of his injury, and was engaged as one of gang of hands in repairing the company's main track within the corporate limits of the city of Ironton, Ohio, and was run over and killed by a passing passenger train. This train was a regular train and was ordinarily on time. On this occasion it was a few minutes late, and was traveling at something greater than its usual speed when passing through Ironton. The accident occurred at 7:30 in the morning, and the men had been but a short time at work. The petition avers that the morning was very foggy, so much so that objects could not be seen until within i0 or 15 feet. It was also averred that at the point where the accident occurred the decedent's view of the track was obscured by buildings and freight cars upon adjacent tracks, and that his hearing was impeded by the noise of a switch engine moving back and forth upon adjacent tracks. The track of the railroad company through the city of Ironton was crossed at right angles by a number of public streets or roads in the vicinity of the place of the collision. It was averred also that the invariable habit of the company was to ring the bell and sound the whistle on approaching these crossings, and that this practice was known to deceased and relied upon as a means of warning by him when so at work upon the track in the vicinity of such crossings. It is also averred in said petition: 'That, for a long time prior to and up to the date of the injuries complained of, it had been the custom of said defendant in running its trains on said track through the city of Ironton and past said crossings, and the place where decedent then was, to approach said point and crossings at a speed not exceeding 10 to 15 miles per hour, which custom was at the time well known to and relied upon by said decedent.'

It is then charged that decedent, while in the discharge of his duty, under the direction and order of his section boss, was 'adzing ties in a stooped position upon said main track of said defendant, without any carelessness or negligence on his part, the said defendant, in utter disregard of its duty and the safety of said decedent and other employes engaged in the line of their duty at said point, carelessly and negligently ordered and caused said decedent to proceed in his work and duty at said time and place, and in the manner above set out; and defendant then and there carelessly and negligently failed to make any protection whatever, by placing a guard to give decedent warning of the approach of trains at said point, or take any other means aforesaid; and defendant carelessly and negligently failed and neglected to cause notice or warning to be given to said decedent by sounding the whistle or ringing the bell on said train approaching said point, as it was the custom of the defendant theretofore to do; and defendant then and there while the decedent was so employed, the defendant carelessly and negligently caused and permitted a certain passenger train, pulled by two locomotives, to run upon said track approaching the point where the decedent then was, off of any schedule time of said defendant, to approach from the south, running north from Kenova, through and within the limits of the city of Ironton upon said main track where decedent then was, at a high and extraordinary rate of speed, to wit, at a speed of from 45 to 50 miles per hour, without sounding the whistle or ringing the bell upon said train, and without any notice or warning or means of protection to said decedent; and then and there negligently and carelessly caused said train, so approaching to rush upon and to strike the decedent, so engaged in the line of his duty as aforesaid, striking the decedent in the head and about the body, knocking him off of said track a distance of several feet, thereby causing injuries to said decedent from which he immediately died.'

The case was submitted to a jury upon the issues joined who found for the plaintiff.

Henry Bannon, for plaintiff in error.

W. D Jones and R. D. Miller, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

After having made the foregoing statement of the case, LURTON Circuit Judge, .

To justify a recovery by a trackman for an injury sustained while engaged in repairing track from collision with a passing train, it is indispensable that the proximate cause of his injury shall be shown to have been the neglect by the railway company of some duty due to him in respect to his protection from injury by passing trains.

Upon this subject the circuit judge, who presided at the trial of this case, correctly stated the law, when he said:

'Now, this man was one of a number of men who were employed as section men on the railroad. They were engaged in repairing the track, taking out rails, putting in new ones, taking out cross-ties and putting in new ones, and hewing them into proper form and shape, and were working on the railroad track, while the trains were being operated in the usual way-- manifestly, a place of danger. A railroad does not suspend the operations of its trains until the track can be put in order, and the proposition to these section men was, 'We will run the trains and operate the road as heretofore, as we ordinarily do, and between trains you must do this work and look out for yourselves to avoid being injured by the trains,' and the section men accept the employment upon those terms, and, if an accident occurs and they are hurt while the trains are being managed and operated in the usual and ordinary way, they

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