211 F. 331 | 2d Cir. | 1914
Angelo Pontillo, the plaintiff’s intestate, had been a track walker for about 12 years. On the day of the accident he was walking in the middle of1 the space between the main track, on which the engine which killed him was approaching, and a siding. His back was towards the engine and at no time did he look behind him. The space between the two tracks was between 7 and 8 feet. The engine which struck him was drawing the regular train from Danbury to Hartford. The train was running on time and at the usual speed of about 15 miles an hour. As the track curved, the engineer, on the right side of the engine, was unable at any time to see Pontillo. The fireman saw him, but at all. times, until just prior to the accident, he was walking between the two tracks and was in a place of safety. The engine bell was ringing at the time of the accident, and had been ringing for a long distance prior thereto. When the engine was about 10 feet from him, Pontillo shifted his position, stepped directly in front of the engine and was killed.
The trial judge tersely states the Question as follows:
■ “Plaintiff places tier riglit of action upon the failure of the fireman to ask the engineer to sound the whistle.”
The court charged the jury, inter alia, as follows:
“The fireman was ringing the bell, the train was on time; the other train that was spoken of was on time going out. The fireman sees a man walking the track in a place where, if he had kept his position, he was perfectly safe. Now, was it negligence on his part in not guessing that that man would step out of a safe place on to the track that that train was running on, due that very minute? Not, was it an error of judgment. He 'may not judge right as to what a man will do, but was it negligence? If it was only an error of judgment, why, even if thé master was there, that would not of itself be negligence. Was it negligence on his part if he did not say to the engineer, ‘There is a man on ahead here, although walking where he is safe now, he may step off the track, and you better sound the whistle.’ It comes right down to' that. So, if you say that was negligence, why, then you may find a verdict for the plaintiff.”
Assuming that the defendant would be liable for the negligence of the fireman, we are unable to find any negligence on his part. The train was on time, running at its usual rate of speed.
The engineer and the fireman were in their proper .places; both were looking ahead and the latter was ringing the engine bell. The fireman saw a long distance ahead, between the main track and a side track, a man walking in the same direction that the engine was going. It is true that he testifies .that at the time he did not know that this man was a track walker. It may be assumed that he was clad in laborers’ garments and was carrying the hammer and wrench used in track repairing. However this may be, he was in a position where an ordinary citizen had no.right to be and the fireman was, at least, justi
The judgment is reversed.