Rosney v. Erie R. Co.

• Decision Date: 25 January 1905
• Citation: 135 F. 311
• Parties: ROSNEY v. ERIE R. Co.
• Court: U.S. Court of Appeals — Second Circuit

135 F. 311

ROSNEY v. ERIE R. Co.

United States Court of Appeals, Second Circuit.

January 25, 1905

A Delos Kneeland, for plaintiff in error.

Frederic B. Jennings and Winfred T. Denison, for defendant in error.

Before WALLACE, LACOMBE, and COXE, Circuit Judges.

COXE Circuit Judge.

The action was brought by the plaintiff, as widow of John H Rosney, to recover damages for his death which occurred at 6:40 o'clock on the morning of December 27 1901, at East Honesdale, Pa., while he was in the employ of the defendant as fireman, by reason of a head-on collision between his engine and another engine belonging to the defendant. The engine on which Rosney was employed (No. 1,314) was engaged in hauling a train of 55 or 60 empty coal cars from Hawley to East Honesdale under orders directing that the engine 'run extra' between these places. So far as mechanical means and appliances are concerned this train was in perfect condition. The engine and train were provided with air brakes properly connected and when the train started from Port Jervis, the evening before the accident, the headlight and two classification lights were burning brightly. The train was properly manned: in addition to the engineer and fireman there was a conductor, a flagman and two brakemen, six in all.

The switching train with which the extra freight train collided in the yard at East Honesdale consisted of 13 or 14 loaded cars drawn by engine No. 1,160. The engine was provided with air brakes but the air brakes on the cars were not connected. The crew consisted of an engineer, fireman and two brakemen. The extra freight had just pulled into the yard and had almost come to a standstill at the water tower, where the engineer intended to take water, when the collision occurred. That the engine had almost stopped is demonstrated conclusively by the photographs in evidence which show the engines in collision almost directly opposite the water tower. The switch engine was also moving slowly just before the collision, not exceeding from two to four miles an hour. The impact was not serious, the damage to the engines being comparatively slight and the damage to the cars infinitesimal. The yard rule was as follows:

'Yard Limit at the following named points are designated by Yard Limit Signs: Port Jervis, Lackawaxen, Hawley, East Honesdale and Deposit. It will not be necessary for any engine or train occupying the main track inside of the yard limits to be protected by Flagmen, except when in the time of a First Class Train. All trains must be governed accordingly.'

We incline to agree with the statement of plaintiff's brief that 'there is not a scintilla of proof that the crew on the train drawn by No. 1,314 were in any wise negligent. ' The only fault imputed to them is that the headlight was out immediately preceding the collision. On the proof this was a question of fact which, if at all relevant to the decision, should have been submitted to the jury, but in our view it is not material to the present issue. If the light were out it was due to the carelessness of the engineer of the road engine; if it were alight the engineer of the switch engine should have seen it. In neither event can any fault be imputed to the defendant. All of the employes of the defendant engaged in operating either of the colliding trains were co-servants with Rosney. New England Railroad Co. v. Conroy, 175 U.S. 323, 20 Sup.Ct. 85, 44 L.Ed. 181; Northern Pacific Railroad v. Hambly, 154 U.S. 349, 14 Sup.Ct. 983, 38 L.Ed. 1009; Northern Pacific Railroad v. Poirier, 167 U.S. 48, 17 Sup.Ct. 741, 42 L.Ed. 72. Therefore, if the collision happened because of the negligence of one or more of these men without contributing fault on the part of the defendant it is manifest that the plaintiff cannot succeed. If, as we have seen, the collision were due to the light being out on engine No. 1,314 that was the fault of the engineer. It was equally his fault if, after seeing the switch engine, he failed to stop promptly. If the collision were due to the absence of Murtha, the switchman, temporarily, from his post, or to the failure of the engineer or fireman of engine No. 1,160 to see the approaching train or to reverse the engine or apply the air brakes in time, the carelessness must be imputed to these men respectively.

But the plaintiff contends that it should have been submitted to the jury to say whether the defendant was not in fault,-- First; in failing to provide sufficient help upon the switching train; second; in providing a yard crew incapacitated from overwork; third; in failing to provide sufficient rules and a proper system for the management of the yard.

In approaching the consideration of these questions, it is wise to bear in mind that in an action by a servant no presumption of negligence attaches from the happening of the accident and that the burden is upon the plaintiff to establish, as an affirmative fact, that the employer has been guilty of fault.

In Patton v. Texas & Pacific R. Co., 179 U.S. 658, at page 663, 21 Sup.Ct. 275, at page 277 (45 L.Ed. 361), the court says:

'It is not sufficient for the employe to show that the employer may have been guilty of negligence-- the evidence must point to the fact that he was. And where the testimony leaves the matter uncertain and shows that any one of half a dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.'

There is no evidence that the yard crew was insufficient to do the work required. There was an engineer, a fireman and two brakemen. The fact that but one brakeman was aboard at the time of the collision was not the fault of the defendant. The other brakeman had stopped at the depot for a moment but for what purpose is not disclosed. That such a crew was incompetent to do the work in a switching yard where trains are necessarily composed of comparatively few cars and where high speed is impossible, has nowhere been shown. Although the train in question had but 13 or 14 loaded cars it is argued that if there had been another brakeman on the front of the train 'this accident would have been averted. ' The argument in effect concedes the point that two brakemen were sufficient, and two brakemen were provided by the defendant. Whether a second brakeman on the train would have prevented the accident is, of course, conjectural. The train was a short one; it was proceeding at a slow rate of speed and if the engineer had seen the road engine in time, he could, in all probability, by using the air brakes on the engine, have stopped in time, even had there been no brakeman at all on the train. A second brakeman might have assisted in stopping the train if he had seen the other engine in time, but whether he would have done so is wholly problematical. It is enough that there is no evidence that one brakeman was unable to do the work at the Honesdale yard and certainly there is no evidence that two brakemen could not have done the work.

The entire argument of the insufficiency of the crew is based upon the inferences of ingenious counsel unsupported by the evidence. The same crew had been employed in the yard for a year prior to the accident and it is not pretended that they were incompetent or that there had been the least difficulty in handling the...