Pheasant v. Director General of Railroads, 2881.

• Decision Date: 06 December 1922
• Docket Number: 2881.
• Citation: 285 F. 342
• Parties: PHEASANT v. DIRECTOR GENERAL OF RAILROADS et al.
• Court: U.S. Court of Appeals — Third Circuit

285 F. 342

PHEASANT v. DIRECTOR GENERAL OF RAILROADS et al.

No. 2881.

United States Court of Appeals, Third Circuit.

December 6, 1922

Robert V. Kinkead, of Jersey City, N.J. (Benjamin W. Moore, of New York City, of counsel), for plaintiff in error.

Edgar W. Hunt and Edward L. Katzenback, both of Trenton, N.J., for defendants in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

The Central Railroad Company of New Jersey and the Philadelphia &amp Reading Railroad Company, by a traffic arrangement, move their trains between Philadelphia and New York over the same line of railroad. Pheasant, a locomotive engineer employed by the Central, was killed by a train of the Reading at a time when both systems were under the operation and control of the Director General of Railroads. Pheasant's administratrix brought this action against the Director General and against both railroad companies on the theory that the decedent came to his death by one of two acts of negligence, one committed by an employe of the Central, the other by an employe of the Reading-- both proximate causes, Sweet v. Perkins, 196 N.Y. 482, 90 N.E. 50, and that the servants of both railroads, because of their unified control, were fellow servants of the decedent, raising in his administratrix a right under the Federal Employers' Liability Act (Comp St. Secs. 8657-8665) to recover against either railroad indifferently. The facts are as follows:

Being short of coal, Pheasant's freight train, westbound, came to a stop on a 'center siding.' This siding was between the main eastbound and westbound tracks. About one hundred and fifty feet westward from the engine, and to the south of the right of way, stood a tower and beyond the tower was a crossing. Pheasant, with his fireman, went to the tower to report the condition of his coal supply. When descending the steps upon their return the fireman heard the sound of a locomotive whistle but could not determine the direction from whence it came. He looked up the eastbound track and down the westbound track-- both straight away for a long distance-- and seeing nothing he and Pheasant stepped upon the eastbound track and proceeded toward their engine.

It was cold. Snow had fallen the night before and banked the side of the track. Pheasant wore a cap with ear-tabs drawn down. The fireman's ears were not covered. In walking toward the engine the fireman looked back once. Seeing and hearing nothing, the two men continued on the track. Suddenly the fireman felt a rumble of wheels and heard a sharp whistle. He cried to Pheasant and jumped, saving himself. Pheasant also jumped but, being an instant late, was hit.

The negligence which the plaintiff charged to the Central was the failure of the conductor of its standing freight train to station a brakeman forward of the engine, who, had he been there, might have warned Pheasant of the Reading train advancing on the track upon which he was walking. The negligence charged to the Reading was the failure of the engineer of its eastbound train to warn Pheasant of its approach.

The trial court entered a judgment of nonsuit. The case is here on the plaintiff's writ of error.

That the conductor of his train was a fellow servant of Pheasant was not disputed; nor that, if he owed Pheasant a duty and failed to perform it, the Central is liable. Whether under the Federal Control Act, Pheasant, an engineer employed by the Central, was a fellow servant of the engineer employed by the Reading and whether, as such, this...