No. 1171 | 1st Cir. | Apr 28, 1916
It is the view of the court that the judgment in this case in the District Court, in favor of the original plaintiff, should be affirmed. Suit was brought under the Employers’ Liability Act, and the circumstances are told by the defendant in error, the original plaintiff, as follows:
“This is an action brought by Barbara Thompson, administratrix, under the Employers’ Liability Act of April 22, 1908, in the District Court of the United States for the District of Maine, to recover damages for the negligent killing of Edgar E, Thompson, a brakeman in the employ of the Canadian Pacific Railway, on November 24, 1913, near Greenville Junction, Me., on the main track running between the state of Maine and the Dominion of Canada. The jury found for the plaintiff, defendant in error, in the sum of $5,000.
“Edgar E. Thompson, the intestate of plaintiff, defendant in error, was 27 years old at the time of his death, a man of good health, earning $3.25 a day, the sole support of the widow, Barbara Thompson, for whose benefit this action was brought. He had been employed by the Canadian Pacific Railway nine years as conductor and brakeman, running on trains between Brownville, within the state of Maine, to Megantic and McAdam Junction, in the Dominion of Canada.
“On the morning of Monday, November 24, 1913, he was a member of the train crew engaged in track work; train of the company consisting of engine, caboose, rail loader, and two empty flat cars. The testimony of Kenneth McLeod, track foreman, who had charge of the rail loader, was that he covered the territory from Greenville Junction, Me., to Megantic, Dominion of Canada ; that the crew, of which the deceased was one member, started to load the ‘four-spot’ rails, so called, for the purpose of clearing the track and roadbed, and to transport and distribute these rails along the main track between Brownville Junction and Holeb, some 30 to 40 miles, where these ‘four-spot’ rails were to be put onto rail racks for the repair of the main track. It appears that, at the scene of the accident, new rails had been put into the track. The old rails had been removed, and this crew, engaged in loading rails, was picking out from these rails that had been removed the best grade of rails, or, as they were called, ‘four-spot’ rails, to be used in the repair of the track, between Maine and Canada. The rails which were being loaded onto this flat car were scattered along on the roadbed and beside the track. These*355 rails, which were picked up on the morning of November 24th, were distributed, under the direction of Mr. McLeod, to bo used in the repair of this international track, wherever and whenever it became necessary to replace worn or broken rails.”
Also it appears:
“The train was operating on Monday morning, November 24th, on the main international line, and between Squaw Brook and G-reenville Junction, in the state of Maine. The work was interrupted three different times, because this work train had to take side tracks in order to clear through passenger and freight trains. Mr. Thompson, the deceased, was in charge of the train when it was loading the ‘four-spot’ rails, in that he had charge of giving the signals to move the train back and forth opposite the particular rails to be loaded. At the instant of the accident one car had been loaded with the rails, and the train crew was carrying this car of rails to Greenville, to be there set on a side track on its way to the distributing points of the rails. The train was backing. The empty flat car was therefore the front end of the train. The intestate was standing, as his duties required him to stand, on this empty flat car. The train was proceeding at a speed of about 10 miles an hour. As this empty flat car reached a high and narrow cut at the point of a sharp curve in the track, it struck a hand car on the track. The crew of the hand car had given no warning by stationing a man ahead, as required by the rules. Before the flat car struck the hand car, Thompson gave the signal to stop. The brakes were applied, but the train had sufficient momentum, so that the hand ear was demolished and the flat car was derailed, and Thompson was thrown under the car, receiving injuries from which he died.
“It appears that up to the time of the accident, men had been working for the company in putting in ties at this point. One of these men on the hand car was a man named Duquette, who was employed hy the Canadian Pacific on this track work. At the time ho was seen by the witness McLeod, he was standing near the ruins of the hand car, crying. The men on the hand car, at the time of the accident, were going in the direction of the tools that had been left beside the track.”
One defense was a claim that the men on the hand car had been discharged on Saturday, a day and a half previous to the accident. The evidence of discharge was, however, that the roadmaster had discharged one Michaud, whom he says had charge of a section gang of 15 or 18 men. There was no evidence introduced to show that these men on the hand car had been discharged, or (if they belonged to this extra crew) had been informed that their foreman was discharged. In fact, Berger, the roadmaster, testified that he had sent a section man down to collect the tools.
This rule was illustrated emphatically and positively in the striking and leáding case, referred to so often as the Pedersen Case, 229 U.S. 146" court="SCOTUS" date_filed="1913-05-26" href="https://app.midpage.ai/document/pedersen-v-delaware-lackawanna--western-railroad-97905?utm_source=webapp" opinion_id="97905">229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125" court="SCOTUS" date_filed="1913-05-26" href="https://app.midpage.ai/document/pedersen-v-delaware-lackawanna--western-railroad-97905?utm_source=webapp" opinion_id="97905">57 L. Ed. 1125, Ann. Cas. 1914C, 153, where a mechanic who, for all that the case showed, had never been out of the state of New Jersey, was engaged in carrying material to be used in repairing a bridge on an interstate commerce railroad. In the Shanks Case, decided by the Supreme Court on January 10, 1916, 239 U.S. 556" court="SCOTUS" date_filed="1916-01-10" href="https://app.midpage.ai/document/shanks-v-delaware-lackawanna--western-railroad-98613?utm_source=webapp" opinion_id="98613">239 U. S. 556, 36 Sup. Ct. 188, 60 L. Ed. -, while it was held that at the time of the injury the prosecutor, as well as the corporation, must be engaged in interstate commerce, a mechanic engaged solely in taking down and putting up an overhead countershaft was not necessarily so engaged. In the persent case the intestate was employed- as a conductor or brakeman running trains between Brown-ville, in the state of Maine, and Megantic and McAdam Junction, in Canada, being east and west terminals in a -foreign country, and where the train in which he was engaged was especially set up for and engaged in gathering up rails from interstate tracks, to be taken to other parts of the interstate tracks; and this was being done with
Beyond this it is sufficient that we refer to St. Joseph & Grand Island Railway Company v. United States, 232 F. 349" court="8th Cir." date_filed="1916-03-09" href="https://app.midpage.ai/document/st-joseph--g-i-ry-co-v-united-states-8799281?utm_source=webapp" opinion_id="8799281">232 Fed. 349, -C. C. A. —, decided in the Circuit Court of Appeals for the Eighth Circuit on March 9, 1916. When analyzed, the cases are so strikingly alike that the authority of the decision in the Eighth Circuit completely fits and covers the corresponding conclusion reached by the District Court in the present case. Every possible feature for claiming that the case in the Eighth Circuit was not within the federal statutes, which can possibly be urged in the present case, was met and disposed of adversely to the transportation corporation; and, after stating the facts as we have stated them, we would have no occasion to do otherwise than follow the Eighth Circuit in the case referred to.
The judgment of the District Court is affirmed, with interest, and the defendant in error recovers her costs of appeal.