Strough v. Central R. Co. of New Jersey

• Decision Date: 02 December 1913
• Docket Number: 1,667.
• Citation: 209 F. 23
• Parties: STROUGH v. CENTRAL R. CO. OF NEW JERSEY.
• Court: U.S. Court of Appeals — Third Circuit

209 F. 23

STROUGH v. CENTRAL R. CO. OF NEW JERSEY.

No. 1,667.

United States Court of Appeals, Third Circuit.

December 2, 1913

Wilson & Carr, John O. Wilson, and Harvey F. Carr, all of Camden N.J., for plaintiff in error.

George Holmes, William D. Edwards, and Charles E. Miller, all of Jersey City, N.J., for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

GRAY Circuit Judge.

Action was brought in the court below by the plaintiff, as administratrix of her deceased husband, Edwin William Strough, to recover damages for his death alleged to have been caused by the negligence of the defendant company. It was tried before a jury in the court below, and at the close of plaintiff's case, defendant's counsel moved for a non-suit, which was granted. The plaintiff excepted to this rule, and sued out a writ of error. The only question before the court is as to the correctness of the rule granting the nonsuit.

At the time of the happening of the accident for which this suit was brought, and for a number of years prior thereto, the Reading Railway Company had, under an agreement with the defendant company, operated its trains over the tracks of the latter the Central Railroad Company of New Jersey, from Bound Brook in New Jersey, to Jersey City. This use was conjoint with that of the defendant company itself, and was governed by the rules of that company, although the trains of the Reading Company were moved under the control and management of its own servants.

Strough, plaintiff's intestate, was a brakeman in the employ of the Reading Railway Company. On September 29, 1910, the day of the accident, he was employed on an extra freight train running from Bridgeport, Pennsylvania, to Jersey City, New Jersey. When the Reading Company's train reached Elizabethport, New Jersey, at about three o'clock in the morning, on the tracks of the Central Company, it was brought to a stop about 150 feet from the rear of a Central Company freight train standing ahead of it on the same track. There was no definite testimony as to the number of cars in the Central Company train, but it was estimated that there were 40 or 45.

After the Reading Company train had come to a stop, three employes of that train, to wit, the conductor, fireman and decedent, went forward and entered the caboose in the rear of the Central Company train. It was testified that they entered the caboose-- or at least some of them did-- for the purpose of getting a drink of water, which they were not able to easily procure on their own train. It was shown that such a visit, far from being an unusual occurrence, was a common practice indulged in as a mutual convenience by the train crews of both companies. The flagman of the Central Company's train was in the caboose with these men. While these four men were in the caboose, the engineer of the Central Company's train was engaged in moving out cars from the middle thereof. When he had finished, he backed his engine and such cars as were still coupled to it, to recouple to the cars that had remained stationary. This he did with such force that his train was driven over the interval of 150 feet which separated it from the train of the Reading Company, and the caboose, in which were the four men above mentioned, was driven up against the Reading engine so violently that two men, one of them the decedent, were caught and held fast in the wreckage. So securely was the caboose wedged upon the engine, that a shifting engine was required to remove it and release the men. When this was finally done, the plaintiff's husband was found to be dead.

The plaintiff offered in evidence certain rules of the Central Railroad Company, prescribing precautions to be taken by its employes when a train was backed against the current of traffic. These rules required, among other things, that the engineer blow his whistle three times and await a reply before starting, and that 'a flagman must take a conspicuous position on the front of the leading car and signal the engineman in case of need. ' The rules also require that air brakes be coupled and in operation. It is true, that the existence of the rules above referred to tends to show such care and foresight on the part of the defendant company, in the operation of its trains, and, as far as they go, such performance of its duty in that regard, as would absolve it from a moral or personal responsibility for the accident. The negligence charged is not as to a default of the defendant in this respect. The defendant company is responsible, not only for the existence and enforcement of proper rules regulating the operation of its trains, but also in certain cases for the defaults of its servants in relation thereto, so that the personal equation, in the practical operation of the great transporation business of such a carrier company, enters into the question of responsibility, and the unforeseen or unexpected default or negligence of a servant, who has been selected with due care, may impose upon that company a liability which its management could not have avoided. No question of the negligence of a fellow servant is here involved. The negligence of the engineer is imputable to the defendant, which was his employer, and the question to be determined here is, whether such negligence, if proved, was of such a character as would be a violation of any duty owed by the defendant to the plaintiff.

Upon the trial, there was evidence tending to show that no whistle warnings were sounded at all, and that no brakeman was posted upon the platform of the foremost car (which in this instance was the caboose) of the backing portion of the train. It was also shown that when the men in the caboose found themselves moving toward the Reading engine, they endeavored to apply the air brakes, but found them out of working order. Upon this state of the case, the defendant moved for a non-suit, and the court allowed it, on the ground that there was no evidence of any duty of care on the part of the defendant toward the plaintiff, assuming all the evidence offered by plaintiff to be true, nor of any actionable negligence on its part.

Among the general propositions stated by the defendant in error is the following:

'Except at stations and yards and at highway crossings, a railroad company is entitled to the exclusive use of its track and property; all persons who go thereon are trespassers, and no recovery can be had for an injury to such class of wrongdoers, unless there is a wanton injury, after discovery of the presence of a trespasser.'

This proposition, however, is beside the question with which we are here concerned. The plaintiff was not a trespasser, in any...