Philadelphia & R. Ry. Co. v. Briscoe

• Decision Date: 02 March 1922
• Docket Number: 2756.
• Parties: PHILADELPHIA & R. RY. CO. v. BRISCOE.
• Court: U.S. Court of Appeals — Third Circuit

279 F. 680

PHILADELPHIA & R. RY. CO. v. BRISCOE.

No. 2756.

United States Court of Appeals, Third Circuit.

March 2, 1922

Evidence that a block signal was in working order 15 minutes before the approach of a train, and was set at a signal warning the train to stop before entering the block, and that it not only passed it without stopping, but failed to stop when it passed over and exploded torpedoes placed on the rails, and crashed into a train ahead, held sufficient to warrant submission to the jury of the question of negligence.

Wm Clarke Mason, of Philadelphia, Pa., for plaintiff in error.

Frank F. Davis, of New York City, for defendant in error.

Before WOOLLEY and DAVIS, Circuit Judges, and LYNCH, District Judge.

DAVIS Circuit Judge.

This suit was brought by Catherine Briscoe, plaintiff below, for the death of her husband, Jackson Briscoe, under the federal Employer's Liability Act (Comp. St. Secs. 8657-8665) as administratrix, on behalf of herself and three children Liva, Mable, and Helen, aged 6, 10, and 12 years respectively, at the time of his death. He was employed as a brakeman by the Philadelphia & Reading Railroad Company on one of its freight trains, engaged in interstate commerce. On November 2, 1920, train No. 58, of whose crew Briscoe was a member, came from Tamaqua to the borough of Linfield, Pa., a distance of about 25 miles, and arrived there about 2 o'clock in the morning. Some distance back the train entered a block, and W. T. Walker, a flagman belonging to the crew, went back about 1,800 feet and placed explosive caps on the track, so as to warn train No. 258, which was following on the same track. Shortly after Walker placed caps on the track and started back, train No. 258 passed him. He testified that right after the caps exploded sparks began to fly from the wheels of the train, indicating that the brakes had been applied, yet it ran into train No. 58 with such force that it cut its way through the caboose and four cars. The caboose was practically split wide open and lodged upon the smokestack of the engine of No. 258.

The case was tried to a jury, and a verdict was rendered for the plaintiff for $15,000, which was apportioned, $3,000 to Catherine Briscoe, and $4,000 to each of the three children. The defendant sued out a writ of error to this court, and its various assignments may be stated in the following propositions: (1) The court erred in permitting the jury to find that Briscoe died as a result of injuries received in the collision. (2) The court erred in permitting the jury to find that the collision was due to negligence of the defendant. (3) The court erred in refusing to permit the defendant to examine the plaintiff as to her fidelity to her husband, for the purpose of establishing that she had been unfaithful and had no reasonable expectation of receiving in the future the amount of money she had been accustomed to receive from him.

It is undisputed that, when Walker left the caboose, only two men, Briscoe and Winkler, were in it. It is also undisputed that the on-coming train 'demolished' the caboose, in which the bodies of two men were later found. Briscoe and Winkler did not proceed on the trip after the accident. Nobody ever again saw Briscoe alive, and three days later he was buried. Upon these facts, was the court justified in submitting to the jury the question of the cause of Briscoe's death, and was the jury justified in drawing the inference that Briscoe died as a result of the accident?

There was no direct and positive evidence that Briscoe was killed in this collision, but proof of the cause of death is not restricted to direct evidence. This court said in the case of Philadelphia & R.R. Co. v. Marland, 239 F. 4, 152 C.C.A. 54:

'True, as to the cause of death there was no direct evidence. But clearly proof of cause of death is not restricted to direct evidence. * * * It may be proved by legitimate inferences drawn from attendant facts, such as the nature of the wound, the position of the body, * * * and the absence of any other suggested or reasonable cause.'

There is not a suggestion or even a hint that Briscoe died from any other cause than the accident. The learned trial judge submitted the 'attendant' facts to the jury, which found that Briscoe died as a result of injuries received in the collision. If this conclusion was reasonably drawn from the evidence, and we cannot say that it was not, the case was properly submitted to the jury. Union Pacific Railroad Co. v. Huxoll, 245 U.S. 535, 540, 38 Sup.Ct. 187, 62 L.Ed. 455.

Was the collision due to the negligence of the defendant company? The plaintiff alleged that the collision between the two trains--

'was due solely to the carelessness and negligence of the defendant and of its employees, in that the defendant carelessly and negligently failed to observe signals and to have said train under control.'

W. T. Walker, the flagman, was asked with reference to the signals at the entrance to that block:

'Q. Was it (the signal) working at that time? A. It was when I went by. I was hanging out of the cabin window of the caboose, and it was red and yellow when the caboose went by it.

'Q. Now, that train, up to the point it stopped, * * * did it pass any other automatic signal in that zone before it stopped? A. No, sir; it did not pass nothing else.

'Q. So that the only signal that you saw as you came into the zone, up to the point where you stopped, was working? A. Yes, sir.

'Q. Did you notice any other signal at that place, before you got into that block that you passed? A. Nothing, only this signal that I just told you about.

'Q. Green and yellow indicate what in the automatic block signal system? A. That means caution. That is caution.

'Q. Red and yellow mean what? A. Stop.

'Q. Stop? A.

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