Pere Marquette Ry. Co. v. Haskins, 6111.

• Decision Date: 17 January 1933
• Docket Number: No. 6111.,6111.
• Parties: PERE MARQUETTE RY. CO. v. HASKINS.
• Court: U.S. Court of Appeals — Sixth Circuit

62 F.2d 806 (1933)

PERE MARQUETTE RY. CO. v. HASKINS.

No. 6111.

Circuit Court of Appeals, Sixth Circuit.

January 17, 1933.

P. O. Strawhecker, of Grand Rapids, Mich. (W. K. Williams and John C. Shields, both of Detroit, Mich., and Smith, Searl & Strawhecker, of Grand Rapids, Mich., on the brief), for appellant.

J. M. Dunham, of Grand Rapids, Mich. (Dunham, Taylor & Allaben, Linsey, Shivel & Phelps, L. H. Cully, and John H. Vander Wal, all of Grand Rapids, Mich., on the brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

MOORMAN, Circuit Judge.

Haskins was an engineer on a regular passenger train operating between Grand Rapids and New Buffalo, Mich. The track of the railroad company between these points was equipped with an automatic block signal system. On the day Haskins was injured, he stopped his train a short distance south of a small station, Vine, in obedience to a stop signal, and backed up to a telephone booth, where the conductor telephoned the dispatcher at Grand Rapids and received an order authorizing him to make out a card on form No. 118. This form provides: "You may proceed to the next signal under control expecting to find an open switch or the track broken or obstructed." The conductor did not have a form No. 118, but wrote "Number 93 — block" and the dispatcher's initials upon a paper drinking cup and handed it to Haskins, who thereupon proceeded against the stop signal. After proceeding less than a mile, the train ran into an open switch and collided with cars on a siding. Haskins received injuries in the collision from which he died, and his administratrix brought this suit and recovered damages for his death under the Federal Employers' Liability Act (45 US CA §§ 51-59). The only question presented to us is whether there should have been a directed verdict.

On the trial it was admitted that Haskins was familiar with the rules of the appellant, the automatic electric block signal system, the manner of its operation, and with the meaning of the order "Number 93 — block." It appears that after receiving this order he handed it to the fireman, who read it back before the train proceeded toward Glen Lord, where the switch was open. The switch standard at that point was on the fireman's side of the track, six and one-half feet east of the rail. At its top there was a banner thirty inches long and six inches wide, painted yellow, with a five-inch stripe of black six inches from the end. When this banner was in a horizontal position, it indicated that the switch was open; when it was sixty degrees from the horizontal position, it indicated that the switch was closed. The track was practically straight the entire distance from Vine to Glen Lord. The proofs show that Haskins, sitting on his seat box at the right of the engine, had he looked out the side window, could have seen the switch for more than a quarter of a mile before reaching it, and that the boiler of the engine would not have cut off his view until it reached a point about one car length from the switch stand. The conductor and a brakeman testified that after the accident he said to them that he did not see the switch until he felt the engine going over it. The fireman said that the brake application was not made until the engine was going into the siding, and before the application was made he called to Haskins and told him to apply the brakes.

It is not necessary to determine whether the appellant was guilty of negligence in having an open switch on its track. Assuming, however, that it was a negligent act to permit the switch to remain open, the deceased was in the position of one who was fully informed of that fact and was acting...