Thomson v. Downey

• Decision Date: 15 June 1935
• Docket Number: No. 5386.,5386.
• Citation: 78 F.2d 487
• Parties: THOMSON v. DOWNEY.
• Court: U.S. Court of Appeals — Seventh Circuit

78 F.2d 487 (1935)

THOMSON v. DOWNEY.^*

No. 5386.

Circuit Court of Appeals, Seventh Circuit.

June 15, 1935.

K. L. Richmond, of Chicago, Ill., and Acton, Acton & Baldwin and Wm. M. Acton, all of Danville, Ill., for appellant.

Walter T. Gunn, Harold F. Lindley, Horace E. Gunn, and Leo W. Burk, all of Danville, Ill., for appellee.

Before EVANS, SPARKS, and ALSCHULER, Circuit Judges.

SPARKS, Circuit Judge.

By this action appellee sought to recover damages in the sum of $10,000 from appellant for the death of her husband, Timothy C. Downey. Decedent was a section foreman and was struck by a train while he was operating a hand car on appellant's railroad track. A motion for a directed verdict was denied at the close of appellee's evidence in chief, and it was renewed and denied at the close of all the evidence. There was a verdict for $4,500. Motions for a new trial and in arrest of judgment were overruled and a judgment was entered on the verdict. From that judgment this appeal is prosecuted.

The railroad was engaged in interstate commerce, and liability was asserted under the Federal Employers' Liability Act (45 USCA §§ 51-59). The negligence charged was that appellant was operating the train at a high rate of speed of fifty miles an hour; that the train was two hours later than its regular schedule, and was being driven around a curve which tended to conceal the tracks ahead of the train from the vision of appellant's servants in charge of the train; that said servants knew, or had cause to know, that deceased was likely to be present and operating his hand car along the curve, and it was their duty to observe the track ahead and maintain such control of the train as to avoid colliding with the handcar, which they failed to do; that as a proximate result of such failure a collision occurred which caused decedent's death while he was in the exercise of all due care and caution for his safety.

Another count contained similar allegations and in addition thereto charged the existence of rule 1218 of the operating department of appellant, which made it the duty of the fireman to assist the engineer in keeping a look-out for signals and obstructions, and to call the engineer's attention thereto; that the fireman negligently failed to perform his duty in that respect, and as a proximate result thereof the collision occurred as hereinbefore set forth.

There was no witness to the occurrence and there was no dispute as to the material facts. Decedent had been a track foreman on the Chicago and Eastern Illinois Railway for more than twenty years immediately prior to his death on March 10, 1934. That railroad was a double track road and ran in a northerly direction from Evansville, Indiana, to Chicago. At Danville, Illinois, it ran almost due east for about two or three miles, then curved to the right, on a three degree curve, and ran almost south to Evansville. A three degree curve forms the arc of a circle whose radius is 1,910 feet. Decedent's employment required him to inspect that part of the track from Danville eastward around the curve to a point on the railroad where it again ran north and south, a distance of about three miles from Danville. About 1,000 feet north from the southern terminus of decedent's section the C & E I crossed the Chicago, Milwaukee & St. Paul Railroad which ran north and south. At that point the C & E I ran in a northwesterly and southeasterly direction, about 45° off due north. Adjacent to that intersection there was located an interlocking switch tower, or station, the Walz tower, north of the C & E I tracks and west of the Milwaukee tracks. At a point 400 feet northwest of the crossing the curve of the C & E I to the left, above referred to, began. It continued 2,109 feet to a point forty feet west of the west line of a cinder highway, which was the first north and south highway west of the Walz tower. From the west terminus of that curve the railroad ran almost directly west into Danville. The distance of the cinder road down the railroad track to the paved highway that runs east from the center of Danville, known as the Covington road, was 4,000 feet. From the tower northwestwardly for about 500 feet there was a cut in the right of way of from two and one-half to four feet. There was no timber on either side of the railroad tracks except two trees, ten and fourteen inches in diameter, standing on the inside of the curve a distance of 250 or 300 feet. Photographs submitted by both parties disclosed no foliage on the trees. There was a wire fence on the south and west sides of the right of way, with posts one rod apart. There was also a line of telegraph poles 150 feet apart between the fence and the tracks. There were no other obstructions to the sight of either the colliding train or the vehicle upon which the deceased was riding, except that the engineer while going around the curve could not see more than 300 feet of the track ahead of him, due to the fact that he was riding over the outside of the curve. The collision occurred about 200 feet south and east of the cinder highway. At that point one could have seen an approaching train on the C & E I track at any point north of the Covington road, a trackage distance of approximately 4,000 feet, although he could not have seen the track for that distance on account of the curve.

On the day of the accident decedent was seen by the operator at the tower about 2 o'clock p. m. passing the tower to the southern terminus of his section. He wore an overcoat and a cap with ear flaps. He was riding on a railroad velocipede having metal wheels at a speed of about four miles an hour. The sun was shining and the temperature was about 25° above zero. He set the velocipede off the track at the end of his section. The next time he was seen he was going around the curve northwardly toward Danville, against a strong northwest wind, on the right-hand track about eight or nine hundred feet above the tower. At 2:18 p. m. the colliding northbound train passed the tower and it was more than three hours behind its regular schedule. It was a fast train and had eight coaches and was traveling at about forty miles an hour. A southbound train was due at the tower at 2:34 p. m. and it arrived on time on the west track about fifteen minutes after the accident. No one saw the accident. The engineer and fireman knew nothing of it until they saw and heard the débris passing the engine. That crew's trip terminated at the Oakland shops in Danville. Prior to the accident the last firing by the fireman was done between the Covington road and Walz. About seventy-five percent of his time when on duty was occupied in firing the engine. He did not know just what he was doing at the time of the accident, but he was preparing himself to get off the engine at his destination which was not more than a mile away. He said, however, that he was neither shoveling coal, nor changing his clothes, as he had to fire again before getting off at the Oakland shops. If he had been sitting in the fireman's seat and had been looking in that direction he could have observed decedent on the track.

After passing the Covington road the engineer whistled for the crossing at Walz. He then answered the clear signal with two short blasts. After passing the crossing at Walz he began whistling for the crossing at the cinder highway, and was still whistling at the time of the collision. During this time the bell was ringing. There was an automatic bell at the cinder highway crossing. It was tested on the day before the accident and again two days following it and was found to be in working order. It was operated by an electric current and if a train were traveling north on the northbound track the bell would begin to ring when the train passed the whistling post, 1,400 feet before the train reached the crossing. On other days prior to the accident, decedent had inquired at the tower with respect to the location of running trains, but he made no inquiry on the day of the accident. Before and at the time of the collision decedent had full knowledge of rule 7 of the company, which is as follows:

"Employe in charge of motor, hand, velocipede or push car, must, whenever possible, secure full information regarding location and movement of trains from operators at stations or from siding telephones before moving on main track from one point to another.

"Operators of cars must pay close...