Unadilla Valley Ry. Co. v. Dibble

• Decision Date: 11 March 1929
• Docket Number: No. 161.,161.
• Citation: 31 F.2d 239
• Parties: UNADILLA VALLEY RY. CO. v. DIBBLE.
• Court: U.S. Court of Appeals — Second Circuit

31 F.2d 239 (1929)

UNADILLA VALLEY RY. CO. v. DIBBLE.

No. 161.

Circuit Court of Appeals, Second Circuit.

March 11, 1929.

Merritt Bridges, of Morris, N. Y. (Warwick J. Kernan, of Utica, N. Y., of counsel), for plaintiff in error.

Glenn F. Carter, of Norwich, N. Y. (David F. Lee, of Binghamton, N. Y., of counsel), for defendant in error.

Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

AUGUSTUS N. HAND, Circuit Judge (after stating the facts as above).

The Federal Employers' Liability Act (45 USCA §§ 51-59), under which Dibble brought this action to recover damages for his injuries, imposes liability upon a common carrier engaged in interstate commerce for injuries to any employee "resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier." The plaintiff contends:

(1) That the rule requiring a written order before proceeding south of Bridgewater was abrogated by the disregard of it by the railway employees. Such being the case, the plaintiff was entitled to recover, even if partly in fault.

(2) That, even if the rule was in full force, the accident resulted in part, at least, from the negligence of the conductor, Caldine, an employee of the railway, and thus Dibble's cause of action came within the terms of the act.

The only evidence that the rule had become a dead letter was that on certain other occasions Dawson, the station agent, whose business it was to give a copy to both the conductor and motorman of any order that the south-bound train should pass the north-bound freight below Bridgewater, neglected his duty. Dawson, according to this testimony, initiated the violation of the rule by handing both copies of such orders to the conductor. Certainly some agent representing the railway, other than the one violating the rule, should have actual or constructive notice of its disregard, before the company can be charged with abandoning its written regulations made for the protection of employés and passengers. Clark v. Manhattan R. Co., 77 App. Div. 284, 79 N. Y. S. 220; Cameron v. N. Y. C., etc., R. R. Co., 145 N. Y. 400, 40 N. E. 1. We can find no sufficient proof that any official or agent of the railway knew or had reason to know that copies of the duplicate green orders were not always delivered by the station master at Bridge-water to Dibble before the train started. Therefore the rule seems to have at all times been in force. If this be so, it is difficult to see why Dibble was not primarily liable for the accident.

In Unadilla Valley Railway Co. v. Caldine, 278 U. S. 139, 49 S. Ct. 91, 73 L. Ed. ___, Caldine's administrator sued this same railway for damages resulting from his death in this very accident. It was there argued that the plaintiff ought to recover because of the negligence of Dibble in going ahead, and the failure of Dawson, the station agent at Bridgewater, to warn him of the freight train, which he knew was coming north. Justice H...