Pennsylvania R. Co. v. Lutton
| Citation | 29 F.2d 689 |
| Decision Date | 07 December 1928 |
| Docket Number | No. 5043.,5043. |
| Parties | PENNSYLVANIA R. CO. v. LUTTON. |
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
Norman A. Emery, of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for plaintiff in error.
John Ruffalo, of Youngstown, Ohio (Ruffalo & Wall, of Youngstown, Ohio, on the brief), for defendant in error.
Before DENISON, MACK, and MOORMAN, Circuit Judges.
Lutton was brakeman on a freight which entered the Youngstown yards, moving east upon the south or main passenger track. His train, after stopping in the yard, was ordered to cross over to the next track south, called the east-bound freight. This cross-over or ladder track, running southeasterly, was substantially a continuation of a yard lead track, which came up from that direction and led into the east-bound freight at a point immediately east of its junction with the cross-over. The switch stands, operating the respective points, were six feet apart. Lutton went down toward the west switch stand to throw that switch. He saw a light engine and tender without cars coming toward him on the yard lead track, and signaled them to stop. They did so, but not until the forward point of the engine was upon, or so close to, the south-bound rail of the east-bound freight that the latter track was not clear.
At this time Lutton was throwing this westerly switch, so that his train could come down the cross-over onto the east-bound freight. He says that, after observing that the track was thus fouled, and that the east-bound switch had not been thrown to permit the light engine to come forward, he assumed that it would back away, because, according to the custom of the yard, his train had the right of way; his switch having been thrown. He started back up the cross-over track toward his train, signaling his engineer to come ahead, and after walking some 10 feet the light engine without warning came up behind him and inflicted the injury for which he brought this suit. The defendant's testimony is that the crew of the light engine told Lutton that they would first come forward and then go back down the east-bound freight out of the way, and that in the execution of this plan they had moved a few feet, when Lutton suddenly stepped on the track ahead of them, and they could not avoid the injury. The case was submitted to the jury upon definitions of due care and ordinary care, as being due from each party to the other, and upon instructions as to contributory negligence and the last clear chance. The plaintiff had a verdict.
As we read the record, there was one simple issue of fact in the case, and no other open controversy, either of law or of fact. The case would have been appropriate for the submission of this clear and sharp issue, complicated by no other question as to liability. It is beyond question that this was a yard movement; that Lutton was a brakeman, moving about among the tracks along which engines and trains were in motion, or about to be; that he knew the light engine was about to move, and was physically equally able to go backward, away from him, or forward, toward...
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