224 F. 351 | 2d Cir. | 1915
The accident happened on the Hudson River Railroad at Castleton, about nine miles south of East Albany, where the tracks run on an embankment parallel to and several feet above the river. Movement of trains on the south-bound (westerly) track, on which all passenger trains run, when not on sidings, is regulated by a succession of semaphore signals on tall posts, which inform the engineer whether the block ahead of him is clear or closed — i. e., occupied by another train. These signals at the block in question are operated from a tower (No. 95). Running alongside of the southbound main track and to the west of it is another track, called by the employes the “hog track,” and used by freight trains. This track runs into the main south-bound track a little over 100 feet north of the tower. Trains on the side or hog track are forbidden to exceed a speed of 15 miles an hour; their movement is regulated by a succession of signals, located west of the track on posts much lower than the main semaphore posts, known as “dwarf” signals. These also qre operated by the same towérman, who receives word from a tower or towers to the,north of him when a south-bound train is approaching, either on main or on side track. The accident occurred about 4 a. m., and the signals were differently colored lights. All signals, at normal, are such in position or color as indicate “danger”; they can be changed to “safety” only by the movement of levers by the man in the tower. About 50 feet south of the last dwarf signal by the side track, said track runs into the main track over a switch, which also is operated by a lever under the control of the towerman. When it is moved one way, the switch leads the train from .the side track to the main one; when it is moved the other way, it leads the train into what is called a “derail.” This is a device to minimize disaster. Should the dwarf signals fail to work, or should the
What happened was this: A freight train, of which deceased was the locomotive engineer,'came down this side track from Fast Albany to the place of the accident. In the cab with deceased were three other men; he was on the right-hand side, where he could look ahead and pick up the series of dwarf signals; the speed of the train did not exceed the 15 miles which the rules required, probably it was néarer 10 miles an hour. Turning a curve about 1,000 feet above the dwarf signal near tower 95, the train ran upon a straight tangent, which led down to the switch between main track and derail. About the time the train ran upon this tangent the sound of a train on the south-bound main track was heard in the cab. The deceased was at his post, awake, and apparently attentive — he answered a question of one of the men in the cab as to the time. He ran the train, without further reducing speed or stopping, past the dwarf signal, and, the derail being open, it ran off the tracks, and after going a few feet along the uutracked ground turned over to the right and fell on the slope, killing Banker, who was found with his hand on the throttle. The question whether or not deceased was negligent was a prominent one in the case. The theory of defendant was that from the time Banker rounded the curve onto the tangent he was confronted with a danger signal (purple light) on the dwarf post, but disregarded it and ran past through the derail. The theory of plaintiff was that no danger signal was displayed to him. The evidence tending to show that the light on the dwarf signal was purple (danger) was direct. The evidence tending to show that the light was green (safety) was inferential. It was contended that an experienced engineer, familiar with the locality, as he was, would not have run past a danger signal, especially when he heard (as presumably he did, since a witness in the cab heard) the rumble of a train on the main track next to him. The verdict gives us no enlightenment as to what conclusion the jury reached as to the alleged negligence of deceased. The action was under the federal Employers’ Liability Act, which provides that contributory negligence shall not defeat recovery, but may require an apportionment of damages. The verdict was for
The charges of negligence are two-fold:
A. That the signals were so operated as to mislead deceased.
B. That the derail was of a type which it was negligent for defendant to maintain at the place in question.
However, the towerman was an interested witness, human life was lost, and he was anxious to clear himself of responsibility therefor. The jury could give that circumstance proper weight, especially since he admits that at one time after he saw the freight coming he. started to change the situation by closing the passenger track and opening the freight track; that h¿ got so far in effecting this change that he had the home and distant signals on main back set at normal, which would stop the passenger train; that he theii changed his. mind, and cleared the passenger track again by restoring the home signal to come on. Incidentally the engineer of the freight train might have seen the change of passenger track semaphore from clear to danger, and have supposed it would naturally.be followed immediately by the change of his own signal from danger to clear. The jury might think these sudden changes on the eve o.f catastrophe were careless, and that defendant should be held liable for thus misleading deceased to suppose that he could safely continue speed, and would find his last dwarf signal showing safety by the time he reached it. Indeed, the jury might have
If the cause had gone to the jury solely on the first charge of negligence, the evidence is such that we would not be warranted in disturbing its finding. Ilut both charges of negligence were sent to them, and we must therefore consider the second one.
Because we cannot determine from the verdict which charge of negligence the jury found against defendant, there must be a new trial.
Judgment reversed.