Severn v. Philadelphia & R. Ry. Co.
| Decision Date | 28 June 1922 |
| Docket Number | 2853. |
| Citation | 281 F. 784 |
| Parties | SEVERN v. PHILADELPHIA & R. RY. CO. |
| Court | U.S. Court of Appeals — Third Circuit |
Joseph A. Shay, of New York City, for plaintiff in error.
Edward L. Katzenbach and Katzenbach & Hunt, all of Trenton, N.J for defendant in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.
This is an action against a railroad company to recover for personal injuries sustained by an employe while both were engaged in interstate commerce. (Employers' Liability Act, 35 Stat 65; Comp. St. Secs. 8657-8665.) The District Court entered judgment of nonsuit. The case is here on the plaintiff's writ of error.
The Belmont yards of the defendant company at Philadelphia are used for making up freight trains. They contain a ladder-track from which other tracks branch off to the right being numbered consecutively from one to eight. It was the practice, when a train with cars to be distributed came to the yards, to place it on track 1. Certain cars were then cut out of the train, pulled back on the ladder-track, moved forward, kicked on one of the branch tracks and coupled with other cars already there, having the same general destination. This work was done by a switching engine and a switching crew consisting of an engineer, fireman, conductor and three brakemen. The actors in this accident were the conductor and two brakemen.
The method of distributing cars was this: Upon a signal from the conductor to one brakeman, indicating on which branch track a movement was to be made, this brakeman-- called the switchman-- would throw the switch from the ladder-track to the proper branch track. The other brakeman was the plaintiff below. Observing the signal by the conductor to the switchman, he was required to go to the track indicated await the cars, and when they came to rest, open the knuckle of the coupler of the last car so that it might couple by impact with the next draft coming on the same track.
The signal was of a proposed car movement; it was not a warning of danger.
The last completed movement before the accident was on track 2. The plaintiff, having opened a knuckle of a coupler, observed the conductor, who was standing on track 1, about one hundred feet away, signal the switchman that the next cut was to go on track 6. Thereupon, the plaintiff, proceeding toward track 6, walked between cars on tracks 2 and 3, passed through an opening between the ends of cars on track 3 and continued to walk a short distance between tracks 3 and 4. He turned and looked for the cars on the ladder-track, but did not see them. Continuing to walk, he looked again, and again he did not see them. He walked a little farther and was turning to cross track 4 and also to look for the cars on the ladder-track when the forward car of the draft, having come on track 4, struck him and inflicted the injuries of which he complains.
At the time of his injury the plaintiff's view of the conductor-- if the conductor had not changed his position after signalling the switchman-- was obstructed. His view down track 4 to the ladder-track was unobstructed. The accident happened in the early morning but after daybreak and after signalling by lights had been discontinued.
The plaintiff was experienced in his work and familiar with the yard. In the switching movements he was required to pass over the tracks continually.
The trial court was of opinion that the plaintiff had failed to make out a prima facie case of negligence and that, in view of Connelley v. Pennsylvania R. Co., 228 F. 322, 142 C.C.A. 614, the plaintiff's injury was the result of a risk which he had assumed when entering his employment, and accordingly entered judgment of nonsuit.
We shall lay aside the question of assumption of risk intimated by the learned trial judge and raised by the plaintiff on one of the assignments of error for the reason that-- being a defense provable by the defendant-- it was not reached before the case was disposed of by nonsuit. Kanawha Railway v Kerse, 239 U.S. 576, 581, 36 Sup.Ct. 174, 60 L.Ed. 448. The...
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