Sumney v. Southern Ry. Co.

• Citation: 89 F.2d 437
• Decision Date: 06 April 1937
• Docket Number: No. 4122.,4122.
• Parties: SUMNEY v. SOUTHERN RY. CO. et al.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

89 F.2d 437 (1937)

SUMNEY v. SOUTHERN RY. CO. et al.

No. 4122.

Circuit Court of Appeals, Fourth Circuit.

April 6, 1937.

John C. Cheesborough, of Asheville, N. C. (J. M. Horner, Jr., of Asheville, N. C., on the brief), for appellant.

G. Lyle Jones, of Asheville, N. C. (George H. Ward and Jones & Ward, both of Asheville, N. C., on the brief), for appellees.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

PARKER, Circuit Judge.

This is an appeal in an action against a railway company to recover damages on account of the death of an employee which is alleged to have been caused by the company's negligence. The complaint set forth a cause of action under the Federal Employers' Liability Act (45 U. S.C.A. § 51 et seq.) and also one under the state law, but it is not seriously disputed that the federal act governs. The court instructed the jury to answer the issues of negligence, contributory negligence, and assumption of risk in favor of the defendant; and, from judgment on the verdict so rendered, the plaintiff has appealed. In the view which we take of the case it is necessary to consider only whether there was sufficient evidence of defendant's negligence to take the case to the jury on that issue.

Decedent was employed by defendant to work about its station at Biltmore, N. C., to sweep the tracks in the Biltmore yard, to place grease or oil on the switches, and to perform general duties of similar character. On the afternoon of January 10, 1934, while engaged in sweeping the tracks opposite the station, he stepped off of the second track to get out of the way of an eastbound freight train and was leaning against or standing near some freight cars which had been left on the third track, when he was knocked down and run over by a sudden movement of these cars and so seriously injured that he died within a few hours. The sudden movement of the cars resulted from their being struck by other cars which were being pushed westwardly along the third track in the course of a switching operation. No warning or signal was given of the approach of these cars or of the movement of the cars by which decedent was injured.

The track on which the cars which caused the injury were standing was regularly used for switching operations, and there was no rule or custom of the company requiring that signals be given when cars left standing upon it were moved. On the contrary, the evidence was uncontradicted to the effect that it was customary to move cars upon that track without signal or notice. Between this track and the second track, upon which the eastbound freight train was moving, there was a space of more than eleven feet, with a clearance between cars of eight feet or more, where decedent might have remained in safety during the passage of the train. The cars by which he was injured had been placed on the third track on the morning of the injury just east of an asphalt walkway leading from the passenger station to the express or baggage house; but there is no showing that decedent had any duties to perform in connection with this walkway or that those in charge of the switching operation had any reason to believe that he would be there at the time. The cars had been separated four or five car lengths east of this western end and a gap of several feet had been left between them so that members of a section gang at work on the second track might carry cross ties through it to the place where they were working; but decedent had no connection with the section gang or the work in which it was engaged.

The contention of plaintiff is that decedent, after stepping off of track two, was standing just west of the cars on track three when he was struck. We think, however, as did the judge below, that the evidence establishes conclusively that he was standing between two of the cars and leaning against one of them, but we do not regard this difference in position as having any material bearing on the question of defendant's negligence. Decedent's death unquestionably resulted from the movement of the cars in the course of a switching operation; and the question on the issue of defendant's negligence is whether it owed him the duty of giving a signal or notice before moving them. Notice was given the members of the section gang that the gap in the cars was about to be closed; but no such notice was given decedent, who was not known to be about the cars, and was not engaged in any business which required that he be in a position of danger with respect to them.

The authorities are clear to the effect that, in the absence of rule or custom requiring it, no signal as to movement of cars need be given in the course of switching operations where, as here, there is nothing to show that those in charge of the operations know or have reason to believe that others are in positions where they will be endangered thereby. Chesapeake & O. Ry. Co. v. Mihas, 280 U.S. 102, 50 S.Ct. 42, 44, 74 L.Ed. 207; Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 217, 72 L.Ed. 513; Aerkfetz v. Humphreys, 145 U.S. 418, 12 S.Ct. 835, 36 L.Ed. 758; McClellan v. Penn. R. Co. (C.C.A.2d) 62 F. (2d) 61; Cain v. Fort Worth & Denver City R. Co. (C.C.A.5th) 75 F.(2d) 103. And, even where those engaged in work about cars are entitled to notice of their movement, the duty to give such notice is owing to them alone and failure to give it cannot be relied upon as negligence by one to whom the duty is not owing. The Mihas Case, supra, is directly in point and is, of course, controlling upon us. In that case an employee was attempting to climb over a coal car, standing with a number of others on a switch track, when the cars so standing were struck by others forcibly propelled by means of a flying switch, with the result that the employee was thrown between cars and injured. There was evidence that other persons had been engaged in unloading coal from one of the cars and that it was customary to give notice to such persons before moving the cars. The court said: "The negligence complained of is that, in making the flying switch, the standing cars were struck with great and unnecessary force; that it was the established custom of the railway company to give due notice and warning to all persons in or about such cars before moving or shunting other cars against the standing cars; and that such notice or warning was not given upon...