Pennsylvania Co. v. Fishack

• Decision Date: 01 July 1903
• Docket Number: 1,142.
• Citation: 123 F. 465
• Parties: PENNSYLVANIA CO. v. FISHACK.
• Court: U.S. Court of Appeals — Sixth Circuit

123 F. 465

PENNSYLVANIA CO. v. FISHACK.

No. 1,142.

United States Court of Appeals, Sixth Circuit.

July 1, 1903

In Error to the Circuit Court of the United States for the Northern District of Ohio.

This action was brought by defendant in error against plaintiff in error in the common pleas court of Richland county, Ohio from whence it was removed to the lower court, to recover damages for a personal injury sustained by him whilst in its employ as a fireman on one of its yard engines. The injury was quite serious, and he obtained a verdict and judgment for the sum of $15,000. His regular employment was not in the yard, but out on the road. On the night of November 18, 1900 by direction of defendant, he acted as fireman on the head engine of two yard engines engaged in transferring a train of 39 freight cars from what is termed the outer depot on defendant's road west of Allegheny river, across that river, and thence north to Twentieth street, in the city of Pittsburg, a street running at right angles to the river. The eastern end of the bridge across said river lies between Tenth and Eleventh streets, in said city, and the territory lying between those streets and west of Penn avenue, which runs parallel to the river, is known as the Penn street yard of defendant. Defendant's railroad extends on further north than Eleventh street. At that point it connects with the railroad of the Allegheny Valley Railway Company, and the territory from thence to Twentieth street the destination of said train, is known as the Twentieth street yard of said railway company. From a point just north of Sixteenth street in said yard there are two tracks extending northwards past Twentieth street, connected there by means of a switch. One of them is known as the main track, and the other as track No. 1. No switchman is stationed at the switch, and it is manipulated by the trainmen of passing trains. At night a lamp issued to indicate which track is open, red indicating No. 1 and white the main track. Between Sixteenth and Seventeenth streets, in the course of track No. 1, is a sharp reverse curve between buildings close to the track on each side. On the night in question a train of freight cars was stationed at or near the north end of this curve.

The Allegheny Valley Railway Company had a yard master in charge of said twentieth street yard, stationed at Twentieth street, and the defendant had a yard master with a clerk in charge of said Penn street yard, stationed at the eastern end of said bridge. He was subject to a general yard master, who had charge of all defendant's yards between Union Station, in Pittsburg, and Jack's Run, Allegheny; he, in turn, to a train master; and he, in turn, to a superintendent. The stations of the two yard masters referred to were connected by telephone. By an order of said railway company it had been provided that the movement of trains between Eleventh and Twenty-Eighth streets should be under the direction of the yard master at Twentieth street; and, further, that north-bound trains should come to a full stop 100 feet south of Sixteenth street crossing, and should not proceed without sending a flagman around the curve between Sixteenth and Seventeenth streets, hereinbefore referred to. A copy of this order had been posted on the conductor's bulletin board in said Penn street yard and elsewhere by defendant prior to said night since 1896 or 1897.

The freight cars in the train upon which plaintiff was then acting as fireman were being transferred, as stated, in order to be delivered by defendant to said railway company. When it reached the eastern side of the bridge it stopped, and the engineers and conductor thereof were directed by one Miller, a yard conductor, who on that occasion was acting as defendant's night yard master, in charge of said Penn street yard, to proceed by way of said track No. 1 to Twentieth street. There was evidence tending to show that he said that it was all right to proceed by said track, and that everything was clear.

Before giving this direction he communicated with the yard master at Twentieth street through his clerk, and was told to order the train to take said track. Being thus directed, the train proceeded on its course. The requirement as to stopping the train and sending a flagman around the curve was not complied with. The lamp at the switch showed red, thereby indicating that track No. 1 was open, and the train proceeded along said track until it collided with the cars standing thereon, as hereinbefore stated. By reason of the curve and buildings, the cars could not have been seen in time to prevent the collision. It was this collision that caused the injury complained of, and it happened shortly after midnight, on the morning of November 19th.

Amongst other errors assigned for reversal is the refusal of the lower court to give a peremptory instruction to find for defendant, requested at the close of all the evidence.

J. R. Carey, for plaintiff in error.

W. S. Kerr and C. H. Workman, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge.

COCHRAN District Judge, after making the foregoing statement, .

This case really presents a question as to the liability of a railroad company for an injury to one of its employes on one of its trains whilst being operated by its employes upon the railroad of another company, under some traffic arrangement, occasioned by a collision between it and cars stationed thereon. But, as stated in his petition, plaintiff's case was as if his injury had been received whilst the train was being operated on defendant's own road. No reference is made therein to the railroad, cars, or employes of any other company as having any connection therewith. And the lower court refused to permit certain of defendant's witnesses to testify as to the connection of the railroad, cars, or employes of the Allegheny Valley Railway Company therewith upon the idea that it had not been affirmatively pleaded. All the allegations of the petition, however, except as to the defendant's corporate existence and operation as lessee of the Pittsburg, Fort Wayne & Chicago Railroad through the state of Ohio and into the state of Pennsylvania, and as to plaintiff being in its employ and injured on the night in question, in the city of Pittsburg, were denied by the answer. Under this denial defendant was entitled to prove the connection of said railroad, cars, and employes therewith, because the same was inconsistent with the allegations of the petition as to how the injury had been caused. But no point is here made of this action of the lower court, inasmuch as the facts, substantially as we have set them forth in the foregoing statement, appeared from the testimony of plaintiff's witnesses and that of defendant's, which was permitted to go to the jury. Neither is it necessary to consider the question whether there was a variance between the allegations of the petition and the proof; for we are of the opinion that the defendant was entitled to the peremptory instruction asked for by it upon the merits of the question, for the reasons hereinafter stated. Nor will we take further notice of the fact that the injury was received on the railroad of the Allegheny Valley Railway Company or the relation of its employes thereto, because there is nothing in these circumstances to affect the disposition of this case. It will be disposed of the same as if the injury has been received on defendant's railroad, and none but its employes were connected therewith.

The negligence complained of in the petition was the failure to have a switchman at the switch connecting the main track and track No. 1; the direction given to the engineers and conductor to proceed along track No. 1, whilst it was so obstructed, which direction, it was alleged, was given by defendant's superintendent, train dispatcher, or other of its employes under whose orders and directions its trains and the train upon which plaintiff was employed were operated; and the allowing said cars to stand upon track No. 1 and obstruct it.

The lower court instructed the jury that there was no liability on defendant's part because of the failure to have a switchman at the switch, as that failure was not the proximate cause of the injury; and, further, that, if they believed from the evidence that the failure of the engineers and conductor to obey a rule of the company requiring the train to come to a stop and a flagman to be sent ahead was the proximate cause of plaintiff's injury, the defendant was not liable, because the engineers and conductor were fellow servants of plaintiff. On the other hand, the jury were told that if the yard master at Penn street yard, in giving the order to take track No. 1, represented that the track was clear, the defendant was liable. In the course of the charge it was said:

'The fault complained of by the plaintiff in this case is that the yard master on the night in question, in the performance of his duty, or in the line of his duty, told the conductor, or conveyed the information to the conductor and engineer, those in charge of this train upon which plaintiff was employed, to the effect that the train should take No. 1 track, and that it was open. There is testimony tending to prove that the business of the yard master was to direct the position and movement of cars and trains throughout certain territory. It was necessary that he give orders, or rather directions than orders-- information rather than orders-- as to the condition of cars upon these various tracks. It is claimed by the plaintiff that upon this occasion he stated that the track No. 1 was clear. Now, the performance of the duties in regard, indicating whether a track was clear or

...