Norfolk Western Railway Company v. Earnest

• Decision Date: 26 May 1913
• Docket Number: No. 153,153
• Citation: 57 L.Ed. 1096,229 U.S. 114,33 S.Ct. 654
• Parties: NORFOLK & WESTERN RAILWAY COMPANY, Plff. in Err., v. D. E. EARNEST
• Court: U.S. Supreme Court

229 U.S. 114

33 S.Ct. 654

57 L.Ed. 1096

NORFOLK & WESTERN RAILWAY COMPANY, Plff. in Err.,

v D. E. EARNEST.

No. 153.

Argued January 29, 30, 1913.

Decided May 26, 1913.

Messrs. John H. Holt, Roy B. Smith, and Theodore W. Reath for plaintiff in error.

Messrs. Bynum E. Hinton, Thomas Lee Moore, Harold J. Pack, and Samuel B. Pack for defendant in error.

Mr. Justice Van Devanter delivered the opinion of the court:

This was an action against a railroad company to recover for personal injuries sustained by an employee while both were engaged in interstate commerce. The plaintiff secured a verdict and judgment in the circuit court, and the defendant sued out this direct writ of error, claiming that the employers' liability act of April 22, 1908, 35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322, upon which the right of action was based, was repugnant to the Constitution of the United States. After the writ of error was allowed, our decision in Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169, settled the constitutional questions in favor of the validity of the statute, but it is still necessary that we pass upon other questions presented in the case. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 63, 57 L. ed. ——, 33 Sup. Ct. Rep. 192.

The injury to the plaintiff occurred in the nighttime, in the month of February, in the railroad yards of the defendant at North Fork, West Virginia, while he was piloting a locomotive through several switches to a main track, where the locomotive was to be attached to an interstate train to assist in moving it over an upgrade in the direction of the next station. He carried a torch and was proceeding in advance of the locomotive to see whether the switches were in proper position, and, if not, to change them. Upon reaching the first switch, known as No. 3, he found it in proper position, signaled the engineer accordingly, and advanced along the track, between the rails, to a point near the next switch, known as No. 2, where the engine overtook him and inflicted serious injuries upon him, resulting in the loss of his right leg. He had not yet signaled to the engineer whether that switch was in a proper position, and one of the questions controverted at the trial was whether the engineer was negligent in attempting to pass over that switch without waiting for a signal. The evidence for the plaintiff was to the effect that it was the established custom in that yard for the engineer to await a signal from the pilot before proceeding over a switch, and that the pilot was entitled to rely upon the engineer's conforming to that custom; while the evidence for the defendant was to the effect that by the settled custom the engineer, although required to await a signal before passing over the first switch, was not required to await a signal before passing over the others, and that it was incumbent upon the pilot to govern himself accordingly. The evidence was likewise contradictory as to whether it was usual for pilots, in advancing before the engine, to walk between the rails, and also as to whether the conditions outside the track made it necessary to do so in the nighttime. But although the evidence was conflicting in these particulars, it established without any contradiction that it was the duty of the pilot to go ahead and see that the switches were lined up properly, and, if not, to put them in position for the engine to pass, and that it was the duty of the engineer to keep control of his engine and to follow at a rate of not more than 3 or 4 miles an hour. Both the plaintiff and the engineer had been in this service for a long time, and were familiar with the manner in which it was conducted, and with all the conditions surrounding it. The plaintiff admitted that as he advanced from the first to the second switch, a distance of 130 feet, he made no attempt to see where the engine was, and the engineer substantially admitted that in covering that distance he made no attempt to see where the plaintiff was. Each justified his action or nonaction in this regard by what he described as the usage in that service.

In its charge to the jury the court, after saying that the mere occurrence of the injury was no evidence of negligence on the part of the defendant or its engineer, and that the burden was on the plaintiff to establish such negligence by affirmative evidence, gave the following instructions at the defendant's request:

'The court further instructs the jury that if they believe from the evidence that the custom and practice in the North Fork yard was for the engineer to follow the fireman with his engine as he lined up the switches, and not to wait for a signal to proceed after the first switch, then it was not the duty of the engineer to wait for such signal, and he had the right to proceed without any being given; and the fact that engineer Drawbond did approach switch No. 2, where the plaintiff was injured, without any further signal from him, is no evidence of negligence against defendant company.

'The court instructs the jury that if they shall believe from the evidence that it was the custom and practice in the North Fork yard for the fireman to line up the switches, and for the engineer to follow him at a rate of 3 or 4 miles per hour without signals, or upon signal to proceed given at switch No. 3 [the first one], and if they shall further believe from the evidence that plaintiff was familiar with this custom and practice in said yard, and that at and before the accident which resulted in plaintiff's injury, engineer Drawbond was proceeding in accordance with this custom, then they are told that said engineer Drawbond had the right to act on the assumption and belief that the plaintiff, in lining up the switches, would take reasonable precaution for his own safety against the approaching engine.'

The defendant complains that the court fefused to say to the jury in that connection that the engineer was not required to keep any lookout for the plaintiff. We think the...