Wyatt v. New York, O. & WR Co.

• Decision Date: 08 December 1930
• Docket Number: No. 44.,44.
• Citation: 45 F.2d 705
• Parties: WYATT v. NEW YORK, O. & W. R. CO.
• Court: U.S. Court of Appeals — Second Circuit

45 F.2d 705 (1930)

WYATT v. NEW YORK, O. & W. R. CO.^*

No. 44.

Circuit Court of Appeals, Second Circuit.

December 8, 1930.

Watts, Oakes & Bright, of Middletown, N. Y. (Abram F. Servin, of Middletown, N. Y., of counsel), for appellant.

Alfred T. Rowe, of New York City (Sol Gelb, of New York City, of counsel), for appellee.

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

SWAN, Circuit Judge.

The first contention of the appellant asserts that the plaintiff was not employed in interstate commerce at the time of the accident, and assigns error to the court's denial of defendant's motion to dismiss the complaint upon that ground. The facts bearing on this issue were substantially undisputed. Plaintiff was a brakeman in the employ of the railroad, and, on the evening of November 14, 1928, was engaged as one of a train crew which was making up an interstate freight train in appellant's switchyard at Middletown, N. Y. The train was being made up upon switch track No. 5. There were cars upon track 6 and a caboose upon track 7 to be picked up by the yard engine, pushed onto track 5, and coupled to the rest of the train. Plaintiff's work was to let off the brakes when the cars were picked up. This he had done for the cars picked up on track 6. His next duty would be to assist in shifting the caboose from track 7 after the string of cars from track 6 had been pushed onto track 5 and coupled to the portion of the train already there. This operation would take a little time, and plaintiff in the mean time went to a nearby "dugout" to get warm. This was a small shanty or lean-to, containing an improvised stove which the trainmen were accustomed to keep heated with coal which could be gathered along the tracks. At the dugout, plaintiff found the conductor of his train, who told him to put more coal on the fire and then to assist in shifting the caboose on track 7. Plaintiff took a shovel, and, without his lantern, went onto the tracks to get coal. While scraping up coal on track 5, he was struck by the yard engine, which he testified backed down upon him without sounding the customary signal and without carrying the customary light upon the rear of the tender. The injury necessitated amputation of plaintiff's leg.

The argument of appellant is that at the moment of the accident the plaintiff was not engaged in work connected with the movement of an interstate train, but was doing something solely for his own comfort and that of other employees who might rest in the shelter between orders. We cannot accede to this contention. Plaintiff's work in assisting to make up the interstate train had not ended; there was merely a pause in his active duties. This distinguishes Erie R. R. Co. v. Welsh, 242 U. S. 303, 37 S. Ct. 116, 61 L. Ed. 319, relied upon by appellant. During that pause he was at liberty to go to the dugout for shelter, to build or keep up a fire for his comfort, and to gather coal for that purpose in the customary manner, without changing the character of his interstate employment. Nothing in such conduct would be inconsistent with his duty to his employer. As was said in North Carolina R. Co. v. Zachary, 232 U. S. 248, 260, 34 S. Ct. 305, 309, 58 L. Ed. 591, Ann. Cas. 1914C, 159, a stronger case for the railroad than the present, "the man was still `on duty,' and employed in commerce, notwithstanding his temporary absence from the locomotive engine." Other authorities in plaintiff's favor are Chicago M., St. P. & P. R. R. Co. v. Kane, 33 F.(2d) 866 (C. C. A. 9); Baltimore & O. R. Co. v. Kast, 299 F. 419 (C. C. A. 6); Brock v. C., R. I. & P. Ry. Co., 305 Mo. 502, 266 S. W. 691, 36 A. L. R. 891; Philadelphia B. & W. R. R. Co. v. Smith, 250 U. S. 101, 39 S. Ct. 396, 63 L. Ed. 869. None cited by appellant appears contra. As the facts were undisputed, the court might have ruled as a matter of law that plaintiff was engaged in interstate commerce. Certainly leaving the issue to the jury under the instruction given was not prejudicial to defendant.

It is another question whether the defendant owed plaintiff any duty in regard to warning him of the approach of the engine. At the moment he was not doing anything in his employment, but something which concerned his own comfort and that of his fellow employees. However, the practice of gathering fallen coal for the dugout fire was of long duration — certainly long enough to charge the defendant with notice of it. The conductor told Wyatt to get coal for the fire. There was implied, if not express, permission given him to go upon the tracks for this purpose. We hold that employees who are rightfully upon the tracks are entitled to the benefit of this rule, even though not at the moment engaged in work for the company. Hence, defendant owed plaintiff the same duty of care as though he were directly engaged in moving its cars; and a failure to sound the cautionary signal required by the rule was a violation of that duty. It is urged that he voluntarily placed himself in a position of danger with full knowledge that the engine would shortly back down upon track 5, and therefore, was obliged to rely upon his own watchfulness to keep out of its way. Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758; Chesapeake & Ohio Ry. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914; Toledo, St. L. & W. R. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513. But this court is committed to the doctrine that those decisions are inapplicable when the railroad violates its own rule requiring the ringing of the engine bell when the engine is about to move. Pacheco v. N. Y., N. H. & H. R. R. Co., 15 F.(2d) 467 (C. C. A. 2).

The plaintiff claimed also a violation of the Boiler Inspection Act (45 USCA §§ 23, 24) by operating the engine without the rear light required by the rules of the Interstate Commerce Commission. Such rules were introduced in evidence over the objection of defendant, and this is assigned as error as a variance from the pleadings. Of course there was no need of pleading the statute. Missouri, Kans. & Tex. Ry. v. Wulf, 226 U. S. 570, 33 S. Ct. 135, 57 L. Ed. 355, Ann. Cas. 1914B, 134. Nor could there have been any surprise in respect to the offered rules, for the bill of particulars referred to "the usual and customary rule" relating to lights on a yard engine engaged in switching.

Hence we find no error in the judgment unless it can be predicated upon the agreement now to be discussed.

Appellant introduced in evidence an agreement, set forth in full in the margin,¹ by which the railroad agreed to pay compensation in accordance with the provisions of the New York Workmen's Compensation Law (Consol. Laws N. Y. c. 67) and Wyatt agreed to waive any other rights or remedies and to accept payment of such compensation in satisfaction thereof. Pursuant to this agreement, the railroad paid him compensation at the rate of $25 per week from the date of his accident up to October 1, 1929. Thereafter payments were tendered by appellant every two weeks up to the time of trial, but...