Pennsylvania Co. v. Cole

• Citation: 214 F. 948
• Decision Date: 15 June 1914
• Docket Number: 2463.
• Parties: PENNSYLVANIA CO. v. COLE.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

214 F. 948

PENNSYLVANIA CO. v. COLE.

No. 2463.

United States Court of Appeals, Sixth Circuit.

June 15, 1914

W. C Boyle, of Cleveland, Ohio, for plaintiff in error.

D. F Anderson, of Youngstown, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff was rear brakeman and flagman upon defendant's east-bound freight train. While his train was standing at about midnight on the main track to take water, it was run into from the rear, by another train consisting of an engine and caboose and the caboose in which plaintiff was asleep was set on fire and plaintiff thereby severely injured. The railroad was equipped with the block system by which the movement of trains was controlled by signals along the railroad. The accident occurred in the block between Hudson and M. B Junction, near Ravenna, Ohio. The negligence charged against defendant in the petition, so far as material here, consisted in: (a) Permitting the second train to be operated in the block in question when those in charge of it knew or should have known by means of the block system of the situation of plaintiff's train; and (b) failing to warn the second train by flagman or signal of the situation of the train ahead. The defenses, so far as material here, were (1) a denial of defendant's negligence, and (2) the contention that plaintiff's action was barred by his alleged gross and proximate negligence in failing to observe a rule which required the flagman when the train is stopped, under circumstances such as exited here, to go back immediately with stop signals a sufficient distance to insure full protection. There was trial to a jury and verdict and judgment for plaintiff. The errors assigned relate to the denial of motion for directed verdict, to the admission and exclusion of evidence, and to the giving and refusing of instructions.

As to the motion to direct verdict: Plaintiff was an experienced brakeman. The testimony showed that the block signals were from 1,500 feet to a mile apart; that when the second train entered on the block it encountered a green light, which required caution in advancing and reduced speed; that the train, which was then running about 30 miles an hour, was slowed down until a red signal was reached which meant danger, and required a stop of a minute before proceeding; that this signal was obeyed, and a second red signal encountered, having the same meaning and requiring and causing similar action; that thereafter the train proceeded at but 5 or 6 miles an hour; that the caboose of the freight train was not discovered by those in charge of the second train until the former was within about 120 feet of the latter; and that the train could not be stopped, while under even the speed stated, within that distance, in time to avoid collision. It is conceded that no stop signals had been given by the standing freight. Defendant insists that there were no tail-lights or 'markers' burning on the rear of the caboose of the freight train, as required by the rules of the company. If this were so, it would probably be difficult to see how, under the testimony, those operating the second train could be held negligent in running into the caboose of the forward train; but there was testimony from which the jury would be justified in finding that the lights were burning upon the caboose of the freight train at the time of the collision; and, as the night was clear and the track straight for a considerable distance, no conclusive reason is suggested for the failure to see the lights, if actually burning, in time to avoid the collision, assuming that the train was running at the limited speed stated and as required by the block signals. The failure to observe the markers on the caboose of the freight train was perhaps not definitely alleged as a ground of negligence, but the very first witness sworn in the case was called to testify to the existence of lighted markers upon the caboose; other witnesses gave testimony tending to the same effect, all without objection of variance or surprise. Had objection to this testimony been made on the ground that it was not covered by the petition, amendment could and should have been allowed. Pennsylvania Co. v. Whitney (C.C.A., 6th Cir.) 169 F. 572, 578, 95 C.C.A. 70; Law v. Ill. Cent. R. Co. (C.C.A., 6th Cir.) 208 F. 869, 870, 126 C.C.A. 27. In view of the testimony that the markers were burning, it cannot be said as matter of law that those in charge of the second train should not, by the exercise of reasonable care, have discovered the presence of the forward train in time to avoid the collision.

But it is strongly pressed upon us tha...