Pennsylvania Co. v. Stalker

• Decision Date: 05 April 1918
• Docket Number: No. 9404.,9404.
• Citation: 119 N.E. 163,67 Ind.App. 329
• Parties: PENNSYLVANIA CO. v. STALKER.
• Court: Indiana Appellate Court

67 Ind.App. 329

119 N.E. 163

PENNSYLVANIA CO.

v.STALKER.

No. 9404.

Appellate Court of Indiana, Division No. 2.

April 5, 1918.

Appeal from Circuit Court, Porter County; H. H. Loring, Judge.

Action by Leona F. Stalker, administratrix of the estate of George Stalker, against the Pennsylvania Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was instituted by the appellee against the appellant to recover damages resulting from the death of appellee's decedent, who was killed by one of appellant's passenger trains. Verdict and judgment for appellee in the sum of $1,300.

On September 28, 1913, George Stalker was, and for eight months prior thereto had been, in the employment of appellant as a section man at Valparaiso, Ind. On said day, and for a long time prior thereto, appellant owned and operated a double-track railroad, extending from the city of Pittsburgh, Pa., to the city of Chicago, Ill., through the city of Valparaiso, Ind. The tracks through Valparaiso run nearly east and west, and intersect a number of public streets in said city. One of said streets is known as Franklin street and the next street west of Franklin is known as Washington street. Between said streets and about 12 feet south of the south track was located a toolhouse in which hand cars and tools were stored. Leading from Franklin street to the toolhouse was a cinder path about 6 feet and about 6 feet south of the south track and running parallel with the track. This path was smooth, and had been constructed for the purpose of affording a safe way from Franklin street to the toolhouse. At a point 200 feet east of the toolhouse the tracks curved to the southeast, the curve being about 900 feet long. There were no buildings on the south side of the tracks near the right of way, and nothing to obstruct the view eastward from said toolhouse except the gates at Franklin street, the semaphore just east of Franklin street, and the telegraph poles, wires, and cross-arms along the south side of the right of way. A person standing in front of the toolhouse near the south line of the track and looking eastward could see an approaching train at a distance of 2,150 feet; and standing at the same place and looking eastward could determine on which track the train was approaching at a distance of at least 850 feet. Washington street and Franklin street were guarded by gates. These gates were operated by the tower man in the tower at Washington street. The south gate at Franklin street was equipped with a ratchet gong which rang when the gates were lowered. The tower was equipped with a large dinner bell, and at Franklin street there was an electric gong on an iron pole, and this bell and gong were operated by the tower man when a train approached.

Appellant was engaged in operating passenger and freight trains between Pittsburgh and Chicago. Between 50 and 60 trains ran over its road each day, and from 25 to 30 of these were passenger trains. In accordance with the established operating plan, trains going east ran on the south track and trains going west ran on the north track. So perfectly was this plan executed that on one occasion only during Stalker's term of service did a train run west on the south track. But on the morning of September 28, 1913, appellant's passenger train No. 15 was running westward into Valparaiso on the south track, contrary to the custom and against the current of traffic. This train had been transferred from the west-bound track to the east-bound track at Morgan, a few miles east of Valparaiso, for the reason that the former track was obstructed by a freight train. Train No. 15 was scheduled to arrived at Valparaiso at 5:56 a. m., but on this morning it was running somewhat late, and passed the toolhouse between 6:10 and 6:20 a. m.

During the entire period of Stalker's employment he was required to go on an inspection trip over the section on which he worked, with certain other members of the crew, every alternate Sunday morning. For this purpose they assembled at the toolhouse, from which they procured their usual tools and a hand car. The time fixed for starting on these trips was 6:30 a. m. On the morning of said day Stalker left his home intending to go on the usual inspection trip. He took the cinder path at Franklin street and walked west-ward to a point in front of the toolhouse. Here he stopped and stood momentarily, looking to the west, and about one foot south of the south track. While in this position he was struck by the locomotive drawing said train, his was body hurled about 85 feet and he was instantly killed. The train was running at the rate of 30 to 40 miles per hour, which was its usual speed at that place. The locomotive engineer was seated at the right side of the cab and could not see Stalker because the locomotive itself obstructed his view in that direction, especially when rounding the curve in the tracks. The fireman was shoveling coal into the fire box and had no opportunity to look ahead. It is customary when coming into a town for the fireman to keep a lookout, and he usually provides for the fire beforehand. The coal furnished him on that morning was of very poor quality, and that made it hard to keep up the fire. Under the company's rules it is the duty of a fireman, when not shoveling coal, to look ahead; and if he should see anybody on the track it is his duty to inform the engineer, the thereupon it becomes the duty of the engineer to give the warning signal. The warning signal consists of a succession of short blasts of the whistle. The fireman knew that the train was running on the unusual track and against the current of traffic. He was unable to say whether any warning signal had been given, because he was busy with the fire, and he did not see anybody near the track or the toolhouse. The train ran to the station-a few rods west of the toolhouse-where it made the usual stop and then proceeded on its way. Neither the engineer nor the fireman knew of the accident until they were informed of it on their arrival at Chicago.

As the train approached, the crossing signal was given at Greenwich street and also at Axe avenue, east of Franklin street, by two long and two short blasts of the locomotive whistle, but the whistle was not blown between Axe avenue and Franklin street. The bell on the locomotive was operated mechanically, and it rang continuously from Greenwich street to the place of the accident. When the tower man observed the train approaching he set to ringing the electric gong on the iron post at Franklin street, and it continued to ring until the accident. He lowered the gates, and the ratchet bell rang as the Franklin street gates went down. He rang the large bell in the tower, and on observing Stalker's perilous situation he called to him. To all these warnings Stalker was oblivious.

A person with good hearing, standing where Stalker stood as the train approached, under all the conditions then existing, could have heard all said warning signals, except that he probably could not have heard the calling of the tower man because the train was then too close upon him. Stalker's hearing was good. He could have heard the locomotive bell in time to have moved to place of safety. Had he looked to the east when the gates were being lowered at Franklin street he could have seen the train approaching on the south track in time to have moved to a place of safety.

Some time after commencing his work as a section man his foreman warned him that trains were liable to run either way on either track and that he would have to pay diligent attention to the approach of trains from either direction on either track and to keep out of their way. In addition to this oral warning, the foreman gave him a pamphlet prepared by the safety committee and containing information, suggestions, and advice, designed for the prevention of personal injuries to railway employés generally. The foreman told him to read the pamphlet and to govern himself thereby. He was able to read and he told his foreman that he would read it. Among other things, the pamphlet contained the following:

“Make it a rule in getting out of the way of trains to step clear of all tracks.”

“Before stepping on any track look in both directions; trains may be expected on any track coming from either direction at any time.”

At the time of the accident there was in full force and effect an ordinance of the city of Valparaiso which provided that no railway train should be run within the city limits at a higher rate of speed than 10 miles per hour.

Leonard, Rose & Zollars, of Ft. Wayne, for appellant. Ed. Crumpacker, Grant Crumpacker, and O. L. Crumpacker, all of Valparaiso, for appellee.

DAUSMAN, J. (after stating the facts as above.)

[1] It is conceded by the parties that at the time of the accident decedent was engaged in interstate commerce. This action, then, is governed by the federal Employers' Liability Act of 1908, and the amendments thereto, as to all matters within the purview of said act. We must accept the act as interpreted by the federal courts, and must accept also the law on this subject generally, as evidenced by the decisions of said courts. Since Congress has taken possession of the field of the employers' liability to employés in interstate transportation by rail, all state laws upon the subject are superseded. Seaboard Air Line v. Horton, 233 U. S. 492, 501, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475.

Section 3 of said act declares that:

“The fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé.”

Section 4 declares that:

The “employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of...