Pennsylvania R. Co. v. Goughnour

• Decision Date: 29 November 1913
• Docket Number: 1,746.
• Citation: 208 F. 961
• Parties: PENNSYLVANIA R. CO. v. GOUGHNOUR.
• Court: U.S. Court of Appeals — Third Circuit

208 F. 961

PENNSYLVANIA R. CO. v. GOUGHNOUR.

No. 1,746.

United States Court of Appeals, Third Circuit.

November 29, 1913

Patterson Crawford & Miller, of Pittsburgh, Pa., for plaintiff in error.

W Clyde Grubbs and Edwin T. Levengood, both of Pittsburgh, Pa for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

GRAY Circuit Judge.

The action below was to recover damages for personal injuries sustained by reason of the alleged negligence of the defendant company, in whose service at the time of the injury the plaintiff was employed as a freight conductor. There was a verdict in favor of the plaintiff, to the judgment on which this writ of error was sued out by the defendant.

Speaking of the parties before us as they stood in the court below the plaintiff was employed as a freight conductor by the defendant. On November 26, 1910, a freight train of the defendant, under his charge, was moved from Conemaugh, in the state of Pennsylvania, to Conway, in the same state, arriving at the latter place at about 5 o'clock in the morning of November 27th. It is admitted that the train thus moved was engaged in interstate commerce. When the train, consisting of some 47 cars, arrived in Conway yards, the morning was dark and foggy. The track on which the train stopped was a running track; that is, trains ran through the yard upon it. Upon stopping, the engine was cut loose from the front of the train and, running around through the yards, which were extensive, came up head on behind the caboose in which the plaintiff and the flagman were sitting. The testimony tends to show that they had remained in the caboose together from the time the train stopped until the engine came up in the rear, to be coupled to the caboose,-- a period of from six to ten minutes. Upon the arrival of the engine at the rear of the caboose, the flagman went out to couple the engine, for the purpose of drilling some of the cars of the train, but came back immediately and told the conductor that there was no air hose on the front of the engine. The evidence tends to show that both the conductor and flagman immediately left the caboose, the conductor saying that he would procure a hose and attend to the coupling of the engine. Shortly after they had thus separated-- how long, the evidence does not certainly establish-- while the plaintiff was between the engine and the caboose attending to the coupling, a train coming from behind, on the running track on which the plaintiff's train was, struck the tender of the engine with such force as to wreck or damage several cars and so crush the plaintiff between the engine and the caboose as to inflict the injuries that are complained of.

The plaintiff testifies that, when he and the flagman left the caboose, he did not see or know where the flagman went. As a matter of fact, the flagman did not attend to his duty of flagging the rear of his train, in consequence of which neglect it is admitted the collision occurred.

The case was brought and tried under the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322)), the plaintiff contending that the negligence of the flagman in not protecting the train was the proximate cause of the accident, for the consequences of which, under the act, the defendant was liable. It is contended by the defendant that the proximate cause of the accident was the negligence of the plaintiff in not seeing, as master and controller of the train crew, that the flagman performed his duty, and that inasmuch as the flagman was in the caboose with plaintiff for as long as from six to ten minutes after the train stopped, the plaintiff, by his acquiescence in such conduct, 'assumed the risk' of the flagman's negligence; meaning thereby that the plaintiff, who was the master and controller of the train crew, by his acquiescence in this conduct of the flagman, in plain violation of his duty and the rules of the company, was guilty of contributory negligence, and therefore cannot recover. This contention was the substance of the defense and the issue upon which the determination of the case turned although there was some confusion in the argument in the use of the phrases 'assumption of risk' and 'contributory negligence.'

Under the act above referred to, the plaintiff did not assume the risk of the negligence of his fellow servant, such negligence being that of the master, which is never assumed by the servant. In common parlance, however, the reckless disregard of a casual danger is often spoken of as an assumption of risk by the party exposing himself thereto, although it is not the ordinary assumption of risk implied in the original contract of employment.

In this case, from the evidence disclosed by the record, there seems to have been no ground for dispute that the proximate cause of the accident was the neglect of the flagman to promptly perform the peremptory duty imposed upon him of flagging his train in the usual way. As a matter of fact, it appears from...