Sandri v. Byram
| Decision Date | 15 February 1929 |
| Docket Number | No. 5054.,5054. |
| Parties | SANDRI v. BYRAM et al. |
| Court | U.S. Court of Appeals — Sixth Circuit |
August J. Waffen, of Iron River, Mich., for plaintiff in error.
Leigh C. Caswell, of Crystal Falls, Mich., for defendants in error.
Before MOORMAN, MACK, and HICKS, Circuit Judges.
The plaintiff in error, herein called the plaintiff, Joseph Sandri, administrator of the estate of Wazino Sandri, sued Byram, Potter, and Brundage, receivers of the Chicago, Milwaukee & St. Paul Railway Company, for damages for the alleged wrongful death of his intestate. On the trial, at the close of the evidence, a motion by defendants for a directed verdict was sustained. Plaintiff sued out a writ of error. The case was brought under and falls within Federal Employers' Liability Act, April 22, 1908, c. 149, § 1, 35 Stat. 65 (title 45, c. 2, § 51, U. S. C. 45 USCA § 51).
The gravamen of the declaration is that defendant's section foreman, one Dickinson, operated a gasoline motorcar, commonly called a "pede," over a public highway crossing in such close proximity to an approaching automobile as to cause the deceased, riding on the pede in company with other members of the section crew, to believe himself in impending peril, and that in an effort to escape therefrom he jumped, was struck by the automobile, and killed.
There is no substantial conflict in the testimony. The determinative evidence is that state highway M-69, running north and south, intersects defendant's railroad line. The deceased was a member of a section crew being carried northeastwardly toward the intersection on a gasoline motorcar, or pede. The motorcar, seven feet long, also carried some timbers which projected rearwardly a distance variously estimated at from three to seven feet. It was being driven by Dickinson, the section foreman. One Hugo Finstrom, in company with Victor West, was driving an automobile along the highway southwardly toward the intersection. The drivers saw each other, and each reduced speed as they approached. The evidence tends to show that, when the pede had arrived at a point within the limits of the highway, and about five feet from the crossing planks, it was under control and could have been stopped within two feet. There is also evidence tending to show that, with the automobile approaching at the rate of about 12 or 15 miles an hour and when it was about 15 feet from the pede, Dickinson speeded up the pede and crossed the highway at about 10 or 12 miles an hour.
The deceased, 17 years old, who had been working about a month as a section man under Dickinson, this being his first employment as such, was seated on the pede toward the front end, and there is evidence tending to show that, when the automobile was about 12 feet from the pede and still approaching at 12 or 15 miles per hour, and as the front of the pede was entering the northern half of the highway, the deceased swung to the right, jumped, landed about the center of the road on his hands and knees, made an effort to crawl to the left side of the road, and while undertaking to get up on his knees was struck by the left front wheel of the automobile and killed. Before stopping, Finstrom swerved his automobile to the right and entered upon the crossing, but with the right wheels of the automobile off the crossing planks. There is some controversy in the record as to whether he turned to the right to avoid striking the deceased or the projecting timbers on the pede. Whether for either cause, he in fact cleared the pede. If the deceased had not jumped, he would not have been killed; but it is clear that he jumped to escape from what appeared to him as a perilous situation. This apparent danger was caused by the act of Dickinson, or at least by the concurrent acts of Dickinson and Finstrom, as above indicated.
But driving the pede over the crossing was not of itself evidence of negligence upon the part...
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