62 F.2d 782 | 2d Cir. | 1933
The plaintiff’s decedent was a ear inspector employed by the defendant railroad company. He met his death in defendant’s freight yard at Ayer, Mass. The plaintiff, his widow and the administratrix of his estate, brought this action under the Federal Employers’ Liability Act (45 USCA §§ 51-59) to recover damages for his death, alleged to have been caused through the negligence of the railroad. The acts of negligence, relied on, consisted of the disregard of an alleged eustom at the freight yard of never shunting 'cars along a track adjacent to one on which a train was moving out. The defendant insists that no proof was made at the trial of such a eustom, and that, if such a custom existed, decedent was not shown to have come within the class of employees for whose benefit it was established.
The occurrences immediately preceding the accident were as follows: A freight train had been made up in the yard and was standing qn track 7, with its engine under steam. A switch engine some distance to the east of this freight train was engaged in switching ears westwardly along a so-called “ladder track” into various other tracks in the yard. Five cars were attached to this switch engine that were to be shunted into track 8. Track 8 ran in a direction parallel to track 7 and was directly adjacent to it. These two tracks intersected at their easterly ends at a switch and ran oyer it into the “ladder track” which extended east of the point of intersection. From this “ladder track” cars might pass westwardly and over the switch to either track 7 or track 8 according to the way in which the switch was set. The engineer of the train on track 7 pumped air into the brake line and then blew a single blast on his whistle to show that he was going to set his brakes and that a “standing” brake test was to be made. At this signal it became the duty of Fernald, the car inspector, to start from the caboose, and go forward along the train to see whether he
Switch yard employees are in general held to assume the risk of their employment and in such a place a railroad company is under no duty to warn them of the approach of trains. C. & O. R. Co. v. Mihas, 280 U. S. 102, 50 S. Ct. 42, 74 L. Ed. 207; Toledo, St. L. & W. R. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Missouri Pac. R. R. v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 72 L. Ed. 351; C. & Ohio Ry. Co. v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914; Aerkfetz v. Humphreys, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758.
The plaintiff does not question that the doctrine of assumption of risk would ordinarily bar recovery and relies on the exception to this general rule that the violation of a custom established for the benefit of employees prevents any assumption of risk and constitutes negligence, for the consequences of which the employer is liable. McGovern v. Phila. & Reading R. R., 235 U. S. 389, 35 S. Ct. 127, 59 L. Ed. 283; Pacheco v. New York, N. H. & H. R. Co. (C. C. A.) 15 F.(2d) 467; Lehigh Valley R. Co. v. Doktor (C. C. A.) 290 F. 760; St. Louis & S. F. Ry. Co. v. Jeffries (C. C. A.) 276 F. 73; Director Gen. of Railroads v. Templin (C. C. A.) 268 F. 483.
It is eontended on behalf of the plaintiff (1) that there was a custom in the defendant’s yard not to shunt cars along a track adjacent to one on which a train had started to move out, (2) that this custom was for the benefit of employees engaged in making an inspection, (3) that Fernald was such an employee.
The evidence of the custom was weak. It was contradicted by five witnesses and consisted only of the testimony of plaintiff’s witnesses Noonan and Crow, the first of whom had been discharged by the railroad some eleven months before the date of the accident, and the second some two years before. Noonan said that there was a practice prevailing in defendant’s yard respecting the movements of the switch engine after a train had started to go out and that then “the switch engine would get in the clear to let the train go over the ladder track.” He added that after the train started out it was the practice not to kick any more cars down in the direction of that train. His statements, taken literally, were consistent with the switch being open and he was not asked whether the custom applied to eases like the present where the switch was closed against the train on No. 7 track. The difficulty with not limiting Noonan’s testimony regarding custom to cases where the switch was set against a train starting to move out is that there can be no reason for establishing a custom not to shunt cars over an open switch into an on-coming train. Such conduct would involve utter recklessness and flagrant illegality, and no custom was needed to prohibit it.
The testimony of Ci'ow was likewise unsatisfactory. He said that it was not the
The plaintiff’s proof was rather unsatisfactory for the reasons we have pointed out, and her case was especially weakened by the omission of the trial judge to submit to the jury the questions whether the custom was for the benefit of employees who were making running inspections and whether Femald was engaged in that duty when he was killed. He instructed them, in substance, that, if the custom was found to exist, and the violation of it was a direet cause of Femald’s death, the plaintiff was entitled to a verdict. This instruction omitted vital matters.
It is true that no exception was taken to the charge because it failed to leave to the jury the question whether the custom was for the benefit of employees making running inspections and whether Fernald was one of such employees,' but the omission was challenged by the defendant when its counsel excepted to the following specific instruction (folio 704):
“Mr. Sansome: * * Now I. ask Tour Honor to charge that if the jury find that there was a custom or practice ¿nd that the ears were lacked down .there in violation of the custom or practice, that then Mr. Fernald did not assume the risk, unless he knew, or with ordinary caution should have known that that custom and practice had been violated.” !
■ • The jury was allowed to find for the de-fendant if it found the custom to exist and nothing more. But it ha'd no right to return a verdict for the plaintiff unless he belonged to the class fo.r whose benefit the. custom was established, namely, employees en
When the proof of the custom and the proof that Fernald was engaged in making a running inspection were so slight, it certainly was prejudicial error to allow the jury to find a verdict for the plaintiff upon the sole ground that a violation of the custom was sufficient to sustain a recovery. For this error the judgment must be reversed.
Judgment reversed.