Pacheco v. New York, NH & HR Co.

• Decision Date: 01 November 1926
• Docket Number: No. 12.,12.
• Citation: 15 F.2d 467
• Parties: PACHECO v. NEW YORK, N. H. & H. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

15 F.2d 467 (1926)

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

No. 12.

Circuit Court of Appeals, Second Circuit.

November 1, 1926.

J. Arthur Seidman, of New York City (Humphrey J. Lynch, of New York City, and Sol. Gelb, of White Plains, of counsel), for plaintiff in error.

John M. Gibbons, of New York City (E. R. Brumley, of New York City, of counsel), for defendant in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

Except for the two rules mentioned above, the case would clearly fall within Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758, Boldt v. Pennsylvania R. R. Co., 245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385, and Chesapeake & Ohio Ry. Co. v. Nixon, 46 S. Ct. 495, 70 L. Ed. 914 (decided May 24, 1926). Apparently among the risks assumed is that of the inattention of other employees in train movements. Chesapeake & Ohio Ry. Co. v. Nixon was decided under the federal Employers' Liability Act and expressly reaffirmed Aerkfetz v. Humphreys; it is, of course, controlling. We are therefore absolved in this instance from a consideration of the niceties, if not casuistries, of distinguishing between assumption of risk and contributory negligence, conceptions which never originated in clearly distinguished categories, but were loosely interchangeable until the statute attached such vital differences to them.

A number of decisions in the Circuit Courts of Appeals under the Employers' Liability Act (Comp. St. §§ 8657-8665) have, however, created an exception to the ruling in Aerkfetz v. Humphreys, when the plaintiff's fellow servants have failed to observe a rule or practice established by it for the protection of its employees. Lehigh Valley R. R. Co. v. Mangan, 278 F. 85 (C. C. A. 2); Director General v. Templin, 268 F. 483 (C. C. A. 3); Lehigh Valley R. R. v. Doktor, 290 F. 760 (C. C. A. 3); Toledo, etc., R. R. Co. v. Bartley, 172 F. 82, 96 C. C. A. 570 (C. C. A. 6); Baltimore & Ohio R. R. Co. v. Robertson, 300 F. 314 (C. C. A. 6); St. Louis & San Francisco Ry. v. Jeffries, 276 F. 73 (C. C. A. 8).

Just what is the ground of the distinction is not altogether apparent, though there would seem to be more warrant for supposing that one's fellows will observe an express rule or practice for specific action in a particular situation than that they will be uniformly attentive. Possibly it has arisen merely from a disposition to relax the severity of the rule. At any rate it has now become the established doctrine in four circuits without dissent, and, so far as we can see, had recognition by the Supreme Court in McGovern v. P. & R. Ry. Co., 235 U. S. 389, 35 S. Ct. 127, 59 L. Ed. 283, though the ruling is not so certain as we could wish.

The defendant argues, however, that under the settled law of Massachusetts such rules are for the protection of the train only, and do not therefore lessen the duty of employees to watch for their safety. That therefore under the law of Massachusetts the plaintiff at bar assumed the risk of a disregard of this rule, and cannot recover under Aerkfetz v. Humphreys. In Sullivan v. Fitchburg R. R., 161 Mass. 125, 36 N. E. 751, a trackman was killed by an engine which was "running wild," as to whose operation there was proof of negligence, or at least it must be so understood from the disposition of the case. A rule requiring that "wild" locomotives "must run cautiously around curves and over grade crossings, looking out for trackmen," was held to be for the benefit of the train, and not of trackmen, whose duty to watch was not changed. In Porter v. N. Y., N. H. & H. R. R. Co., 210 Mass. 271, 96 N. E. 680 the rules promulgated by the defendant are not stated, and we have no means of knowing what they prescribed, except the statement in the opinion that they were not designed for the protection of trackmen. In Morris v. B. & M. R. R. Co., 184 Mass. 368, 68 N. E. 680, two rules required trains to blow a whistle and ring a bell while rounding curves, and were held not to be for the benefit of trackmen. Cruzan v. N. Y. C. & H. R. R. R., 227 Mass. 594, 116 N. E. 879, and Casey v. B. & M. R. R. Co., 231 Mass. 529, 121 N. E. 403, each arose under the federal Employers' Liability Act, and in each the court held that there was no evidence of the defendant's negligence. It is true that in the first a rule requiring enginemen to watch for danger signals or obstructions was said not to be for the benefit of trackmen, as it clearly was not.

In none of these cases, so far as appears, was there involved a rule which prescribed a specific cautionary signal designed for the protection of the men. It may therefore be that in Massachusetts the law is not different from that in the federal cases cited above, though it must be owned that in the face of Sullivan v. Fitchburg R. R. it is hard to suppose so. As res integra it seems to us plain that at least the rule at bar was intended to protect not only the train crew but those trackmen who might be working near by; certainly we cannot think that it was intended to protect the train. If the Massachusetts common law is different, with the greatest respect we cannot accept it, unless it is authoritative.

As to the measure of the defendant's negligence, we cannot see any peculiarity in the Massachusetts law. At least it has never been there suggested that a train crew would not be negligent which ran down a trackman in broad daylight, on a clear day and a straight track, by backing down upon him a shift of cars slowly moving along a siding. The doctrine, if it be applicable at all, affects only the question of whether the trackman assumes the risk of the violation of a rule which prescribed a cautionary signal in such a situation. On that point we think that the state decisions are not authoritative, because the question is not of Massachusetts common law, but of the meaning of a federal statute. The defendant retorts that even so the statute merely says that assumption of risk shall be a defense, and leaves the interpretation of that phrase to the local common law where the event occurred.

This argument is exactly answered by Pryor v. Williams, 254 U. S. 43, 41 S. Ct. 36, 65 L. Ed. 120. There the defendant had pleaded assumption of risk as a defense in an action in a...