Rocco v. Lehigh Valley Co

Decision Date06 February 1933
Docket NumberNo. 359,359
Citation77 L.Ed. 743,53 S.Ct. 343,288 U.S. 275
PartiesROCCO v. LEHIGH VALLEY R. CO
CourtU.S. Supreme Court

Messrs. Abraham W. Feinberg, of Ithaca, N.Y., and Clayton R. Lusk, of Cortland, N.Y., for petitioner.

Mr. Harold E. Simpson, of Ithaca, N.Y., for respondent.

Mr. Justice ROBERTS delivered the opinion of the Court.

The petitioner's husband, while riding a track inspection tricycle, was killed in a headon collision with an electrically operated passenger train on a single track branch of the respondent's railroad connecting Ithaca and Auburn, New York. The line, which skirted the eastern shore of Cayuga Lake, was subject to washouts in stormy weather. Primarily to protect four daily passenger trains, the decedent, Rocco, an experienced employee, was assigned to inspect a section extending from Ithaca to a point about 7 1/2 miles north of that city. His schedule required him to leave Ithaca 6:30 a.m., preceding the morning north-bound train, and to return in advance of the south-bound train, which arrived at Ithaca at noon; to go out again at 3:30 p.m., about an hour and a half before the afternoon train left Ithaca, and to return ahead of the train from Auburn, which was due at Ithaca at 8:30 p.m.

On December 8, 1927, there was a high west wind blowing across Lake Cayuga, which had driven the waters over the track at various points and been the clause of washouts and delays. The south-bound train due at Ithaca at 12:23 p.m. was over three hours late. At 3:30 in the afternoon Rocco left to cover his inspection beat, and was struck by the train about a mile from Ithaca, on a blind curve, where he could not see the approaching train nor the motorman see him.

A rule with which Rocco was familiar forbade trackwalkers to occupy the main track without first ascertaining from the operator the whereabouts of approaching trains in both directions. Rocco's practice had been to comply with this rule. On one or more occasions when he failed to do so he had been reprimanded for the omission. He must have known on the day of the accident that heavy washouts had occurred and that the train which should have arrived at 12:23 was somewhere on the line. It reached Ludlowville, eight miles north of Ithaca, the last reporting station prior to reaching Ithaca, at 3:14 p.m. This fact Rocco could have ascertained if, in compliance with the rule, he had inquired of the operator.

Suit was brought in the Supreme Court of New York, under the Federal Employers' Liability Act (45 USCA §§ 51—59), by Rocco's executrix, who averred that his death resulted from negligent failure to operate the train at proper speed, omission to warn him of its approach by whistle or bell, and breach of the duty to provide him with a safe place to work. The defenses were that decedent assumed the risk and that his negligence barred a recovery. Upon the trial a verdict of $12,096 was rendered, which the jury reduced 40 per cent. on account of Rocco's contributory negligence. 135 Misc. 639, 239 N.Y.S. 157. The Appellate Division affirmed judgment for the petitioner. 231 App.Div. 323, 248 N.Y.S. 15. The Court of Appeals ordered that the complaint be dismissed. 259 N.Y. 51, 181 N.E. 11. The case is here on certiorari from the judgment of dismissal entered by the trial court pursuant to mandate.

The questions presented are whether under the circumstances the respondent owed the decedent any duty to warn him of the approach of the train, or to keep a lookout for him; and whether Rocco's disobedience of the rule was in such sense the primary cause of his death as to render immaterial any neglect on the part of the motorman. The Court of Appeals decided both questions against the petitioner.

Respondent relies on the duty of a person employed on the tracks of a railroad to exercise vigilance for his own safety, and to keep out of the way of moving trains, and asserts that the chance of a collision was a risk assumed by an employee assigned to work on the roadbed. Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758; Chesapeake & Ohio Ry. Co. v. Nixon, 271 U.S. 218, 46 S.Ct. 495, 70 L.Ed. 914. Those cases applied the principle to accidents on a stretch of track where the...

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