Southern Ry. Co. v. Smith

• Decision Date: 06 May 1913
• Docket Number: 2,316.
• Citation: 205 F. 360
• Parties: SOUTHERN RY. CO. v. SMITH.
• Court: U.S. Court of Appeals — Sixth Circuit

205 F. 360

SOUTHERN RY. CO. v. SMITH.

No. 2,316.

United States Court of Appeals, Sixth Circuit.

May 6, 1913

Jourolmon Welcker & Smith, of Knoxville, Tenn., for plaintiff in error.

Pickle Turner & Kennerly, of Knoxville, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

DENISON Circuit Judge.

This was an action for damages, brought under the federal Employer's Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322)) on account of the killing of a switch tender, J. P. Smith, by a switch engine in the railway yards. It presents as controlling the question whether there was any evidence fairly tending to show a lack of due care on the part of the engineer in not observing Smith upon the track in time to avoid the accident or whether, on the other hand, the evidence permits only the conclusion that Smith stepped upon the track so closely in front of the coming engine that absence of due care by the engineer may not be inferred.

We cannot give space to a discussion of the evidence. Plaintiff's proof is not far beyond the margin line of insufficiency; but, taking into account the ordinary probabilities of human conduct, along with the evidence of the witnesses and permissible computations of speed and distance, there was legal support for the theory that Smith stepped upon the track 80 or 100 feet ahead of the engine, and walked along the track with his back to the engine while it was covering 150 feet at a very slow speed. Accepting the engineer's testimony that he did not see Smith or know of the injury till later, it would follow that the engineer was not looking; and, as he could have stopped his engine in 10 feet or given a probably effective warning, the failure to look would bear causal relation to the injury. Clearly, this situation would tend to show negligence, unless the Railway Company is right in its contention, founded on Aerkfetz v. Humphreys, 145 U.S. 418, 12 Sup.Ct. 835, 36 L.Ed. 758, that defendant owed to a switch tender, walking on the track, no duty to take any care to avoid running him down.

We cannot say that there was no duty whatever to keep a lookout for Smith. Doubtless, it was primarily Smith's duty to keep out of the way, but this did not absolve the engine crew from all obligation. The care required and the duty imposed with reference to the yard employes seen upon the tracks are much less in degree than with reference to strangers; but defendant's theory of no duty would extend to a case where an employe was obviously helpless on the track and might have been seen for some time from the coming engine. It would permit the engine crew to run through the yard with their eyes shut, and it is too...