Southern Ry. Co. v. McGuin

• Decision Date: 20 February 1917
• Docket Number: 1453.
• Parties: SOUTHERN RY. CO. v. McGUIN.
• Court: U.S. Court of Appeals — Fourth Circuit

240 F. 649

SOUTHERN RY. CO. v. McGUIN.

No. 1453.

United States Court of Appeals, Fourth Circuit.

February 20, 1917

M Carter Hall, of Fairfax, Va. (Moore, Keith, McCandlish &amp Hall, of Fairfax, Va., and Robert B. Tunstall, of Norfolk Va., on the brief), for plaintiff in error.

Leo P Harlow, of Alexandria, Va. (Charles Bendheim, of Washington, D.C., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

WOODS Circuit Judge.

Charles McGuin, a section man, was struck and killed by one of the defendant's locomotives on January 22, 1912. In this action under the federal Employers' Liability Act, his administratrix recovered a verdict for $3,000 for the benefit of his wife and children.

The first position taken is that the jury should have been directed to find a verdict for the defendant, because the only reasonable inferences to be drawn from the evidence were: (1) McGuin was not engaged in interstate commerce at the time of the accident. (2) His death was due to his own negligence without negligence on the part of the defendant. (3) McGuin assumed the risk.

Prior to the day of the accident, McGuin had been engaged in the usual track work done by section men. On that day, by direction of the track foreman, he was working with Parati, a road engineer, who was surveying and setting stakes with the view of improving a curve by a slight change in the track. At the point of the accident the road was double-tracked, and, owing to a broken rail in the north-bound track, a north-bound passenger train was running at about 35 to 40 miles an hour on the south-bound track. A few minutes before the approach of the train, Parati, the surveyor, had sent McGuin north to a designated point to hold a rod by means of which he intended to take a back sight. McGuin started on the north-bound track looking for the designated station. When in a cut on a curve, where he would have been able to see the approaching train only 661 feet, he was struck by the engine and killed. Parati completed the work by placing the stakes to guide the trackmen in changing the rails, but the change in the track was never made. The defendant is a carrier of both intrastate and interstate commerce.

The case of Pedersen v. Delaware, etc., R. Co., 229 U.S. 146, 33 Sup.Ct. 648, 57 L.Ed. 1125, Ann. Cas. 1914C, 153, seems conclusive on the first point. It was there held that the work of keeping in repair the track, roadbed, and other instrumentalities of a railroad engaged in interstate commerce is so closely related to interstate commerce as to be in practice and in legal contemplation a part of it. The work held to be a part of interstate commerce was the carrying of bolts or rivets to be used in taking out an old girder of a bridge and putting in a new one. Here the work was surveying and marking the changes to be made in the position of the cross-ties and rails, so as to make a better curve. No distinction can be founded on the failure of the railroad to complete the work by actually making the changes contemplated. Making the survey was as much a part of the work as laying the rails according to the survey. The numerous cases in which the work was on things which had not at the time become instrumentalities of interstate commerce obviously have no application.

The second proposition, that there was no proof of negligence on the part of the defendant, is one of difficulty. The train had passed Parati and Miller, another workman, when the accident occurred, and the question of negligence depends upon their testimony and that of Lynn, the engineer, and Daniels, the fireman. The fireman testified that he was looking out from the left side of the cab, and saw McGuin walking between the two tracks, where he would probably have been struck; he called the engineer's attention to him; the engineer blew a crossing signal; McGuin moved out of his sight; the engineer then applied the brakes and blew the alarm signal; he last saw McGuin for an instant within 8 or 10 feet of the engine, as he was coming across to the left rail of the south-bound track. The engineer testified that, upon the fireman speaking to him, he leaned out of the cab and saw McGuin between the two tracks, where he considered him safe, but he blew the station signal; McGuin looked over his shoulder, seemed to see the situation, stepped upon the north-bound track, where he was safe, and walked on, then looked straight back to the approaching train, seemed to become confused, started two or three ways in a second, and then darted across the south-bound track in front of the engine and was struck, when one more step would have put him clear. As he started across the track the alarm signal was given and the emergency brakes applied.

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