Reynolds v. New York O. & W. Ry. Co.

• Decision Date: 09 June 1930
• Docket Number: No. 252.,252.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: REYNOLDS v. NEW YORK O. & W. RY. CO.

42 F.2d 164 (1930)

REYNOLDS v. NEW YORK O. & W. RY. CO.

No. 252.

Circuit Court of Appeals, Second Circuit.

June 9, 1930.

Kernan & Kernan, of Utica, N. Y. (Warnick J. Kernan, of Utica, N. Y., of counsel), for appellant.

Miller, Matterson & Quinn, of Syracuse, N. Y. (William F. Quinn, of Syracuse, N. Y., of counsel), for appellee.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge.

This appeal involves the legal effect of a rule of the defendant railroad company which provided that:

"When a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman's signals a sufficient distance to insure full protection, immediately placing and leaving two torpedoes on the rail, and when necessary, in addition, displaying lighted fuses. * * *

"The front of the train must be protected in the same way when necessary by the baggageman, head trainman or fireman.

"When a train is moving under circumstances in which it may be overtaken by another train, the flagman must take such action as may be necessary to insure full protection. By night, or day when the view is obscured, lighted fuses must be thrown off at proper intervals. * * *

"Conductors and enginemen are responsible for the protection of their trains."

The same general rules contained the following definition of a "train": "Train. An engine, or more than one engine, coupled with or without cars, displaying markers."

In the present case a section gang consisting of four railroad employees, of whom plaintiff's intestate was one, had been engaged in removing a plank in front of the Parker Station on defendant's railroad. They had come to the station on a gasoline motor car known as a speeder, which they had placed on a switch off the main track. When they had finished their work there for the day, they lifted the car over upon the main track and started the speeder in a northerly direction toward Guilford, a place about 1¼ miles away, where they were to take care of the switch lights.

Before the speeder was placed back on the main track, a passenger train going north had run by Parker, which was a flag station, and had neglected to stop and leave a passenger. To the north of the station the track ran through embankments and curved westerly, so that the rear of the train could not be seen from the speed car, which was placed on the main track immediately after the train had run past the station.

The passenger train backed up to let the passenger off. The speed car came on toward it at a speed which finally reached about 20 miles an hour, and the four men on it at first could not see the train because it was hidden by the curve, and finally because they sat on the car with their backs toward the direction in which the train was coming. The gasoline motor of the speed car was operated by Eastwood, one of the four men in the section gang. Its motor was skipping, and Eastwood was down on his knees at the time of the collision trying to make it work properly. He met his death when the speed car ran into the train.

The conductor of the train appears to have been at the rear of the last car as his train started to back. He testified that as soon as he saw the speed car (and this was when it was about 300 feet from him) he signaled to stop his train, which was backing at the rate of 5 or 6 miles an hour, and that he succeeded in reducing the momentum so that his train was not moving when the speed car collided with it and plaintiff's intestate was thrown off and received injuries resulting in his death. He also testified that he and one of his crew vainly shouted as he saw the speed car coming down on the train, in order to warn the intestate and his companions. One of the plaintiff's witnesses testified that the train was still "slowly" moving up to the time of the collision.

The flagman did not go back when the train stopped, nor was any action taken by the overtaken train to insure protection other than the blowing of three long whistles, which the engineer testified was a signal for the flagman to go back as required by the rule.

The defendant maintained a manual block signal system, and the passenger train was in the same block with the speeder when the latter was started and up to the time of the collision. The brother of plaintiff's intestate and a workman named Palmer, who were members of the section gang, testified that they knew this to be the case.

This action was brought under the Federal Employers' Liability Act (45 USCA §§ 51-59). The complaint alleged that the death of the intestate was due to the negligent operation of defendant's passenger train and speeder, in that the persons in charge of the signal system of the defendant and the switches leading upon the main track of defendant were negligent in allowing the speeder to be operated in close proximity to the rear of the passenger train and allowing the passenger train to back up against traffic in the same block while the speeder was moving in the same direction and that the persons in charge of the passenger train failed to give any warning of the fact that it was backing up.

The plaintiff introduced testimony that it was the custom when a train stopped or backed to send out a flagman to protect it against trains approaching from the rear, and the rule (No. 99) heretofore mentioned was also in evidence.

The defendant moved for a nonsuit because intestate was guilty of primary negligence, because plaintiff had failed to make out a cause of action, and because the risk, being obvious, was one which the plaintiff's intestate assumed. The motion was denied.

The trial court charged the jury that it was for them to determine whether the defendant was negligent in not observing the rule and conforming to the custom. From a judgment for the plaintiff, this appeal was taken.

The rule and the alleged custom were almost identical. Each was violated, but neither can be regarded as relating to such an instrumentality as a speed car, or as intended for the protection of its occupants. A speed car is not either an engine or an engine coupled with a car within the meaning of the rule, and therefore is not a train as defined therein. The rule was not designed to protect a train against a light gasoline car made to carry a few workmen and their tools or to protect section workmen. A speed car resembles the hand car which has...