Southern Ry. Co. v. Hylton, 5258.

• Decision Date: 28 January 1930
• Docket Number: No. 5258.,5258.
• Citation: 37 F.2d 843
• Parties: SOUTHERN RY. CO. v. HYLTON.
• Court: U.S. Court of Appeals — Sixth Circuit

37 F.2d 843 (1930)

SOUTHERN RY. CO. v. HYLTON.

No. 5258.

Circuit Court of Appeals, Sixth Circuit.

January 28, 1930.

Charles H. Smith, of Knoxville, Tenn., and J. A. Susong, of Greeneville, Tenn. (H. O'B. Cooper, of Washington, D. C., and J. A. Susong, of Greeneville, Tenn., on the brief), for appellant.

J. A. Fowler, of Knoxville, Tenn. (S. F. Fowler, and Fowler & Fowler, all of Knoxville, Tenn., on the brief), for appellee.

Before DENISON, MOORMAN, and HICKENLOOPER, Circuit Judges.

DENISON, Circuit Judge.

Hylton was a freight engineer running to Knoxville from the west on the Southern. Between Knoxville and Clinton a "steel gang," of which Majors was foreman, was engaged in relaying rails, working west. Hylton with his train encountered this gang between mileposts 15 and 14 west from Knoxville; the track was in an unsafe condition; the engine was derailed, and Hylton was killed. This action was brought to recover damages for his death; the court below left the issue to the jury; it found a verdict for plaintiff. The action was planted upon the Federal Employers' Liability Act (45 USCA §§ 51-59), so that contributory negligence was not a bar. The only question presented to us is whether a verdict for defendant should have been instructed.

The defendant's negligence, which is alleged and thought to be supported by proof, is that it was the custom of the defendant, for the safety of the trackmen and the coming trains, that the track gang foreman, whenever he was making the track unsafe at a point which might be hidden by curves from a train which might be approaching, should send out a flag far enough up the track to insure that any such train would stop before reaching the unsafe spot. Since it was unquestionably required, by a rule or by custom in its interpretation, that the track foreman should send such a warning flag some distance up the track to give notice to the trainmen that they were approaching the working steel gang, and since there was here unquestionable compliance with this rule and custom, the particular flag, the absence of which was counted upon as negligence, may be called the second flag. As to this second flag custom, it is the theory of plaintiff that its operation was intermittent, that, "when a rail was out," such a flag would be sent, and, "when the rail was ready," it would not be. Since the work here in progress was a continuous operation, substituting new, longer, and heavier rails for the old ones over many miles, and since the track was therefore always unsafe for passing, except as the trackmen put it in temporary order whenever they knew a train was coming, this custom is, at the best, confused and unintelligible. Whether there was such a custom, applicable to these events, and of such extent that Hylton might be presumed to have relied upon its observance, are questions as to which it may be doubtful whether the evidence in support reaches the character of substantial proof as distinguished from a scintilla. However, for the purposes of this opinion, we assume that there was substantial proof of it, and that there was room for the jury to find that what was done by Majors in the way of sending a second flag did not satisfy the custom. These assumptions leave open only the question whether such negligence by defendant as is thus assumed in this respect substantially contributed to the derailing, or whether Hylton's own conduct was the sole efficient cause.

At Clinton, a few miles west, Hylton had stopped for orders. "Train Order 19" seems to be the general term for special warnings and cautions to trainmen. At Clinton, written upon the blank for order 19, Hylton received a copy of the train dispatcher's order, dated at Knoxville on that day, and reading: "To all trains at Clinton. Look out for steel gang laying rails today between 14 and 15 C mile posts, from 7 A. M. until 4 P. M." The uncontradicted testimony from witnesses on both sides is that this order made it Hylton's imperative duty to hold his train during this mile under such control that he could at any time stop within half the distance of his clear vision ahead. The only doubt of the existence of this duty comes from a suggestion that there were places where the ability to stop within half this clear vision would have been inconsistent with the minimum necessary speed; but there is no suggestion that there would have been any operating difficulty in always holding the train under such control that it could be stopped within the limits of the entire clear vision ahead; and, for the purpose of this case, the further limitation to half the distance may be disregarded as immaterial. The order was read by Hylton and his fireman and a brakeman then upon the engine. Hylton then went on, and, just as his engine mounted the top of Chestnut ridge, he was flagged by John Arnwine, who had been sent there for that purpose by foreman Majors. This flagman was about 2,000 feet from where the track work was then going on, and there was an intervening curve which prevented seeing one point from the other. As Hylton passed, the flagman mounted the engine, Hylton ran a few car lengths down grade, so that his long and heavy train would not be stalled on the summit, and then he stopped. This point of stopping was substantially at milepost 15, which was 1,738 feet from the later disaster. The flagman then told Hylton that the steel gang was at work relaying between this milepost and the next one, and to look out for them. Hylton passed the word to the fireman and brakeman that they were laying rails and to look out for them, and the fireman repeated the notice back. Hylton stood there a few minutes pumping up the air, and then started on down with his brakes partially applied and his train under full control.

Between him and the steel gang there was first a slight and immaterial curve to the right and then a seven degree curve to the left,¹ and on the left a rising hillside which had been terraced out for the track grade; but this rising bank was cut back and sloped for some distance from the track. The result of the curve and grading was that the track gang at work came into view from the fireman's side of the engine at a distance variously stated at from 600 to 1,000 feet. The brakeman on watch at once saw the gang, and called to Hylton, and Hylton used every effort to stop; but his speed (estimated at 12 miles) was such that he could not. Such excuse, or rather explanation, as there is for his failure to obey the 19 order, is stated by the fireman, who says that, after starting at milepost 15 and going a short distance, Hylton noticed some men on the track down well towards milepost 14, and indicated that he thought they were the steel gang, so that just here he could run a little faster, and he then released the brakes. Then he either misjudged his momentum and speed, and quickly lost control, or had used up too much air on his first brake application, and neglected to replenish it, or both. In any event, he plainly disobeyed the 19 order, and substituted his own judgment. He not only did not keep his train under control, within the distance directed, but, after once coming to a dead stop, and after again having maintained for a period perfect control, he deliberately released it. If he had obeyed the 19 order, there would have been no derailment.

It is difficult to accept just the theory of facts which we have recited. The distance from the point of stopping at milepost 15 to the point where the engine men saw the track gang is only about 1,000 feet (at the most), and how Hylton could have pumped his air up and fully maintained effective braking for any substantial distance, and then, in the remainder of the 1,000 feet, and "just a few seconds of time," picked up speed enough so that his remaining air would not hold the train, is...