Willever v. Delaware, L. & W. R. Co.

• Decision Date: 20 November 1916
• Citation: 89 N.J.Law 697,99 A. 321
• Court: New Jersey Supreme Court
• Parties: WILLEVER v. DELAWARE, L. & W. R. CO.

99 A. 321

89 N.J.Law 697

WILLEVER

v. DELAWARE, L. & W. R. CO.

Court of Errors and Appeals of New Jersey.

Nov. 20, 1916.

Swayze, Trenchard, Parker, and Bergen, JJ., dissenting.

Appeal from Supreme Court.

Action by Lillian Willever, administratrix, against the Delaware, Lackawanna & Western Railroad Company. A judgment for plaintiff was reversed by the Supreme Court (87 N. J. Law, 348, 94 Atl. 595), and plaintiff appeals. Judgment of Supreme Court reversed, and that of court of common pleas affirmed.

Herbert C. Gilson and William C. Gebhardt, both of Jersey City, for appellant. Frederic B. Scott, of New York City, for appellee.

WHITE, J. This is an appeal from a decision of the Supreme Court reversing a judgment of the Hunterdon county common pleas entered upon a verdict of a jury in favor of the plaintiff, the widow and administratrix of one William Willever, who was run over and killed by a train of empty freight cars of the defendant railroad company while he was working in the employ of that company as foreman of a section gang in its "yard" at Port Morris, in Morris county.

The action is based upon the federal Employers' Liability Act and its amendments, making common carriers by railroad while engaged in interstate commerce liable for injury to, or death of, their employés, resulting in whole or in part from the negligence of the officers, agents, or employés of such carriers. The Supreme Court decided that there was no error in the action of the learned trial judge regarding the question of the accident having occurred while the deceased was employed in interstate commerce, and the correctness of this decision is conceded by the appellee, the defendant company.

Upon the other question involved, namely, Was there evidence to support a finding of negligence on the part of the employés of the defendant company? we find ourselves unable to agree with the conclusion reached by the Supreme Court. That conclusion is expressly predicated upon an understanding of the facts as set forth in the opinion in the following language:

"The decedent was a section foreman of the defendant company, and he and the men under him were required to keep in order the tracks and switches in the Port Morris yard. This yard was used for the breaking up, temporary storage, and making up of trains which were devoted to interstate, as well as intrastate, commerce. Decedent had held the position of foreman for five years preceding the date of his death. Shortly before the accident occurred he was at work with his gang repairing certain switches in the yard. He left these switches to go to some other point in the yard—where, or for what purpose, the evidence does not show. As he was crossing track No. 5 he was run down at the switch connecting that track with another by a freight train which was being backed down the yard by a yard engine, and which was moving about as fast as a man walks. The testimony showed that no warning was given to the deceased by those in charge of the movement of this train or by any other employs of the company of its approach. * * * A rule of the company which was put in evidence reads as follows: 'When cars are pushed by an engine, a man must take a conspicuous position on the front end of the leading car and signal the engineman in case of need.' But there is nothing in the wording of this rule to suggest that it was promulgated for the protection of employés engaged at work in the defendant company's yards, and proof is uncontradicted that it has no application to the movement of engines and cars therein, but only for the guidance of employés upon trains moving upon the road itself."

We think the Supreme Court overlooked evidence from which the jury were justified in drawing a picture materially different from that presented by the above-quoted language, and of course, the case being before that court upon appeal, and not on a rule to show cause, it is the existence, and not the preponderance, of justifying evidence that is controlling.

We think there was evidence from which the jury were justified in finding: (a) That Willever, when run over, was not crossing the track, but was at work in pursuance of the duties of his employment in cleaning snow and ice from the switch where he was killed; (b) that when he placed himself in the position, at work at that switch, which he occupied when he was run over, a train of empty freight cars nearly a quarter of a mile long was on the same track only about 200 feet away, standing "dead," that is, without engine attached or crew in charge, on a track and in a portion of the yard not used for "drilling" purposes, but only used to run trains in on in taking them to the portion of the yard about half a mile away, which was used for "drilling" purposes; (c) that he saw that this train of empties was not being "drilled," and that no yard engine or locomotive was near them when he started to work at the switch; (d) that after he had placed himself in this position, probably facing away from the train in order to watch out for danger from the other direction, relying on the observance of the rule above quoted to protect him against the movement in his direction of the train of empties, a yard engine with its crew went out from the "drilling" portion of the yard about half a mile away, and attached to the other end of this train of empties, and, without warning of any kind, commenced to push them silently toward Willever, without his knowing it, and without reasonable care being first taken to ascertain that the track was clear where Willever was at work, and without a man taking "a conspicuous position on the front of the leading car to signal the engineman in case of need," as required by the rule (No. 102) above referred to; (e) that, instead of the evidence being uncontradicted as to this rule not being for the protection of employés in defendant's yards and having no application to the movement of engines and cars therein, and being only for the guidance of employés upon trains moving upon the road itself (as understood to be the case by the Supreme Court), there was evidence indicating that the rule did apply to the "movement of trains" within as well as without the company's yards where such movement fell within the language of the rule and the heading or subdivision under which it occurred in the book of rules, as distinguished from the process of "drilling" in the yards, and that such rule constituted a part of the system established by the defendant company for the movement of the trains to which it applied, in order, inter alia, to secure the safety of its employés; and (f) that what was done to this string of empty freight cars on the morning in question fell within the application of this rule, and that Willever, who had been furnished by the company with a copy of the book of rules containing it, relied for his safety upon the observance of its provisions, and that his death resulted from the neglect of the employés of the defendant company to carry out those provisions.

The evidence which, taken in connection with the other evidence in the case, we think formed a proper basis for such findings, may be summarized briefly as follows: The "yard" mentioned was about 2 1/4 miles long, and had in its widest part about forty tracks in all. There were six principal or main tracks upon which the trains were brought into the yard. The track upon which the accident occurred, "No. 5," or the "mud track," was one of those six. O'Neill, a switchman in the employ of defendant company, testified regarding this track: "It isn't used for drilling; it's used for pulling trains in to be drilled." Upon this track a train of empty freight cars without any locomotive attached had...