269 F. 361 | 6th Cir. | 1920
A freight train became stalled on the east-bound main track of the Pennsylvania Railroad. The automatic block signal system was in use and was in effective operation. One of these signals, which we may call No. 1, was about 300 feet west of the rear of the stalled train. The next one, which we identify as No. 2, was 4,500 feet farther west. According to this system, when an east-bound train passed No. 2, and while it remained in the block between No. 2 and No. 1, No. 2 showed a red light. As the train left the block and entered on the next block east, No. 1 showed a red light, and No. 2 changed from red to yellow, and would continue yellow so long as any part of the train was in the block adjacent on the east
The stalled train sent for help, which soon arrived in the shape of a light train, consisting of engine and caboose, coming from the west. It coupled onto the rear of the other train and prepared to help. Pursuant to the rule and practice, the light train sent a flagman back. In his progress west, he had reached a point about 800 feet from his own caboose when he saw another train approaching. It was close to him before it was visible, because of the extreme fogginess prevailing, but with his red and white lights he gave the prescribed stop signal. This train was a special fast freight, running about 35 miles an hour, and it is imdisputed that it passed the yellow block at No. 2, and passed the brakeman’s stop signal, and passed the red block at No. 1, all at full speed and without any attention to the signals. It crashed into the standing train, and the engineer, who thus had not seen or had disregarded all signals, was killed. His representatives brought this action in the court below, under the federal Employers’ Liability Act (Comp. St. §§ 8657-8665). His negligence is not denied, but it is the theory of the action that his personal negligence and the negligence of the railroad in not giving the flagman’s stop signal farther west cooperated, whereby each became a proximate contributing cause, - in which event, as specified in the act, and as pointed out by the Supreme Court in Norfolk Co. v. Earnest, 229 U. S. 114, 33 Sup. Ct. 654, 57 L. Ed. 1096, Ann. Cas. 1914C, 172, and as applied by this court in Pennsylvania Co. v. Cole, 214 Fed. 948, 131 C. C. A. 244, and by the Supreme Court in Union Pacific v. Hadley, 246 U. S. 330, 38 Sup. Ct. 318, 62 L. Ed. 751, his representatives would be entitled to recover a proportionate part of the damages.
The trial court directed a verdict for the defendant. Clearly, the case should have been given to the jury, if there was substantial evidence indicating that there was negligence by the railroad in the matter of the flagman’s signal and that such negligence-was a proximate contributing cause of the disaster. The critical question is, therefore, as ' to the existence of such evidence on each of these points.
In addition, no attention was paid to any one of the three signals which the engineer did receive. It is the merest surmise that he would have paid any attention to the flagman’s signal if it had been given a little further west. There is no substantial reason to think that this would have made any difference. A signal which, at 800 feet, was neither observed nor obeyed, would in all probability have been equally inefficacious a few car lengths farther back. We find, then, that on the subject of negligence there is at best only a dubióus inference, and, on the subject of causal relation, not even that. A mere conjecture, standing upon a basis of uncertain inference, does not make substantial evidence. Such a case lacks both the quantitative and the qualitative essential miriimum (Patton v. Ry., 179 U. S. 658, 665, 21 Sup. Ct. 275, 45 L. Ed. 361; Virginia Ry. v. Hawk [C. C. A. 6] 160 Fed. 348, 352, 87 C. C. A. 300; Richards v. Mulford [C. C. A. 6] 236 Fed. 677, and cases cited on page 681, 150 C. C. A. 9) and for the same conclusion on somewhat analogous circumstances, see Great Northern v.
It is also suggested that the flagman failed in his duty because he did not use a fusee. Ordinarily, a fusee may be left by the flagman, burning on the track, when he leaves his station and is called back to his train; possibly there is evidence tending to show that it would be prudent, in such a fog as this, for the flagman to light a fusee and let' it burn while he was keeping his protecting station; but there is nothing to show that it was either customary, or was a reasonable precaution, for the flagman, going back to his intended station, to carry a burning fusee as he walked; nothing short of this would have been of the slightest importance on this occasion.
It should be added that the rules required the engineer, where for any reason he could not see the block signals, to stop or proceed with great caution, and that the crew of the preceding light train and others of the fast freight saw and observed these block signals. The fireman of the fast freight was not sworn; we infer that he also was killed.
The judgment is affirmed.