Tiller v. Atlantic Coast Line R. Co.

• Decision Date: 19 May 1942
• Docket Number: No. 4909.,4909.
• Citation: 128 F.2d 420
• Parties: TILLER v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

128 F.2d 420 (1942)

TILLER v. ATLANTIC COAST LINE R. CO.

No. 4909.

Circuit Court of Appeals, Fourth Circuit.

May 19, 1942.

Richmond Moore, Jr., and J. Vaughan Gary, both of Richmond, Va., for appellant.

Collins Denny, Jr., of Richmond, Va., and J. M. Townsend, of Petersburg, Va., for appellee.

Before PARKER, SOPER, and DOBIE, Circuit Judges.

SOPER, Circuit Judge.

John Lewis Tiller, a sergeant of police in the employ of the Atlantic Coast Line Railroad Company, was fatally injured while on duty at 7 P. M. on the evening of March 20, 1940, when he was struck by a railroad car in the Clopton Yard of the Railroad Company near Richmond, Virginia. Upon the trial of the suit by his executor against the Railroad Company for damages for his death under the Federal Employers' Liability Act of April 22, 1908, as amended by the Act of August 11, 1939, 45 U.S.C.A. § 51, et seq., the District Judge directed a verdict for the defendant upon the ground that the evidence disclosed no negligence on the part of the carrier. The case largely turns on the meaning of the amendment of 1939 whereby § 4 of the Act was changed to add the provision that in any action under the Act to recover damages for the death of an employee, the employee shall not be held to have assumed the risk of his employer's negligence. See 45 U.S. C.A. § 54. It is the contention of the appellant that by reason of this amendment the carrier may no longer rely upon the rule that as employees in railroad yards are aware that cars and engines move in all directions at irregular intervals, they assume the risk and must be on the lookout for their own safety so long as the movement is not unusual.

The defendant carrier operates each evening a freight train from Richmond to the south in two sections. Cars from the north are assembled at the Acca Yard of the Richmond, Fredericksburg & Potomac Railroad, and brought thence by a road engine to the Clopton Yard on the south side of the James River. Richmond cars are assembled at Byrd Street Station of the carrier, on the north side of the river, and are taken thence to the Clopton Yard. These cuts of cars arrive about the same time and are there assembled for further transportation in such order that they may be conveniently dropped off at divers southern points.

Running through the Clopton Yard from east to west is the Clopton Road that is open to the public. Coming from the north of the road are three parallel tracks, of which the easternmost is the northbound main line, the center the southbound main line, and the westernmost is known as the slow siding and is used for shifting operations. Coming in from the northwest are the tracks from the Acca Station which also cross the Clopton Road to the west of the slow siding and connect with it south of the road.

Tiller had been in the employ of the Railroad Company for sixteen years, and was familiar with the layout of the tracks in the Clopton Yard and with the operation of the cars and the make-up of the trains. It was his duty as a member of the police force to guard the merchandise in the trains, to inspect the seals on the cars, and in the performance of his duty he rode the trains at such places as he saw fit. He followed no regular routine in coming to the Yard to police this particular train. He was seen at the Byrd Street Yard before the cars left that point on the night in question, and it is a fair inference that he rode on the cars from Byrd Street to Clopton Yard, although no one saw him on the cars or knew where he rode. He likewise followed no routine in checking the seals on the cars but did this work in various places in the yard.

The assembly or classification of the cars in making up the train requires the shifting of the cars back and forth, and employees, including police officers within the yard, are instructed that they must watch out for the movement of the trains as no employee watches out for them and no lights are used at night on the head end of back-up movements except when an employee is placed at the back end with a lantern to protect a road crossing.

On the night in question, the cars from the Acca Station came into the Clopton Yard from the northwest, and the engineer was instructed to cut off three cars from his train and to go southwardly across the Clopton Road until he reached the slow siding and then to back up on the slow siding northwardly. These movements were made. In the meantime the cars from the Byrd Street Station had come south on the southbound main line. The evidence indicates that Tiller was standing on the slow siding, or between the slow siding and the southbound main track, inspecting the seals on the cars from Byrd Street that were on the southbound main track. He was struck a short distance north of the Clopton Road by the back-up movement of the cars from Acca Station on the slow siding. While no one saw the accident, this account is justified by the finding of Tiller's flashlight a few feet north of the Clopton Road and the finding of his cap and his pistol at intervals a few feet further north, and finally by finding him under the wheels on the east side of the rear end of the head car. The brakeman on the car in the back-up movement was riding on the west side near the end of the head car holding a lantern with which he gave signals to the engineer as they approached the Clopton Road, but it was his duty to look out for traffic on the Clopton Road and he did not see Tiller standing to the east of the train. The automatic bell on the engine attached to the cars in the back-up movement was ringing at the time.

The distance between the western rail of the south bound main line track and the eastern rail of the slow siding was 7 feet 11½ inches. This distance was reduced by the overhang of the cars moving in opposite directions on the two tracks to 3 feet 7½ inches, so that there was sufficient room for a man to stand in safety between slowly moving cars on the two tracks; but it is probable that Tiller did not hear cars approaching on the slow siding from the south.

There was some evidence on the part of the plaintiff that there was an error in the classification of the cars at Byrd Street, which necessitated the classification at the Clopton Yard. There was also evidence on the part of employees on the cars from the Acca Yard that they had not made this particular movement on prior occasions. But these employees had been on this particular run for only a few times in several years, and the evidence as a whole leaves no doubt that the Clopton Yard is a classification yard and that movement on the slow siding was in no sense unusual. It follows that the case presents no exception to the rule concerning the duty of railroad employees in freight yards to look out for their own safety, and the question for determination is whether this rule has been modified by the amendment of 1939 to the Employers' Liability Act.

Prior to the amendment of § 4 of the Act, it was well settled that carriers had the right in actions under the Act for damages to rely upon the defense that their employees assumed the ordinary risks of their employment. This right was limited only by the provision of § 4 that the employees should not be held to have assumed the risks of their employment in any case where the violation by the carrier of any statute enacted for the safety of the employees contributed to the injury or death of the employee. Specifically it was held that in the movement of cars in a railroad yard by day or by night a carrier was under no duty or obligation to look out for the employees within the yard or warn them of the approach of cars in the ordinary manner by the blowing of whistles, the ringing of bells or the display of lights or otherwise.

Thus, in Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 168, 169, 170, 171, 48 S.Ct. 215, 216, 72 L.Ed. 513, in the case of a car checker, it was said:

"The plaintiff cannot recover in the absence of negligence on the part of defendant. Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 502, 34 S.Ct. 635, 58 L.Ed. 1062, L.R.A.1915C, 1, Ann.Cas.1915B, 475. And, except as specified in section 4 of the act, (45 U.S.C.A. § 54); the employee assumes the ordinary risks of his...