223 F. 631 | 2d Cir. | 1915
The findings are inartificially drawn, conclusions of law being in some instances embodied in what purport to be findings of fact. Redistributing them the facts are as follows:
Plaintiff’s intestate was a track laborer in the employ of defend; ant, working with a pick, loosening dirt between the ties of the westbound track of defendant’s railroad near Owego station; five other workmen were engaged in the same gang at that place. He was struck by a west-bound work train of defendant, receiving injuries from which he died. The work in which he was engaged was of a nature which required him to work in a bent and inclined position. The defendant had not stationed near these six workmen any person to be on the lookout and to give them warning of the approach of trains. The train in question .consisted of an engine, 15 ballast cars, and a caboose; the engine was at the westerly end of the string of cars, Tuning backwards,, with its tender first, drawing the cars behind it. The engine whistle was blown half a mile from the place of the accident, and the train was in plain sight from that poirit up to the point where the accident occurred. After the engine whistled and while it was approaching the track gangs, the foreman and .two assistant foremen blew their hand whistles as notice to all of the men to keep clear of both tracks while'the train passed.
There is no finding as to how many gangs there were, nor as to the location of defendant’s gang relatively to the others.
It is further found that deceased must have heard the engine whistle blow One-half mile away.
As conclusions of law from these facts it was found that:
(1) The engineer was negligent in not giving proper and sufficient warning of the approach of the train.
(2) That defendant was negligent in not stationing near deceased’s gang any person to be on the lookout and to give them warning of the approach of trains.
(3) That deceased should have exercised more care when he heard the engine whistle blow, and that he thus contributed somewhat to the accident;
(4) That plaintiff is entitled to judgment for $2,500.
The third conclusion is clearly supported by the findings. There is no finding as to the speed of the train; certainly, if it had been going at any unusual or extraordinary speed, some such finding would have been made. Moreover, even if it were going at the speed of 60 miles an hour — a most unreasonable hypothesis in the absence of any proof in its support — the deceased had 30 seconds after the whistle blew to take care of himself; two or three steps would have put him in a place of safety. '
The fourth conclusion naturally follows as an inference from the second and third; $2,500 is a very moderate award for the death of Orsini, even though his own negligence contributed.
Judgment affirmed.