269 F. 1 | 3rd Cir. | 1920
Bogdan was run down and killed by a train of the Erie Railroad Company on its main line of tracks in Jersey City, within yard limits. In this action his administrator charged the defendant with negligence in operating the train by an engine without a headlight and without giving “reasonable, and the usual and customary notice and warning” by bell or whistle. The trial court entered judgment of non-suit without giving its reasons. By this writ of error the plaintiff brings the judgment here, presenting for review all the grounds on which the defendant based his motions for non-suit, in order to cover with certainty tire particular one which moved the court. Among these were failure of the plaintiff to show that the decedent was employed and the defendant engaged in interstate commerce at the time of the accident and his failure to prove pecuniary loss suffered by the decedent’s parents, for whose benefit as his next of kin this suit was brought, thereby challenging the plaintiff’s right to recover under the Federal Employers’ Liability Act (Comp. St. §§ 8657-8665).
“Decedent was assisting another man at work at or near a switch, which switch was connected with tracks used for both interstate and intrastate commerce.”
This stipulation, construed most favorably to the plaintiff on the defendant’s concession, placed the decedent at the switch and made the switch a part of the tracks. The switch thus became an instrumentality as permanently devoted to commerce as the tracks themselves (Minneapolis & St. Louis R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358, Ann. Cas. 1918B, 54; Pedersen v. D., L. & W. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153), and determined the character of the employment of both employe and carrier as interstate. •
We now come to the main question, whether there was evidence that the decedent’s death was due to negligence of the defendant, and to the related question, whether the decedent assumed the risk of such negligence. The case permits the latter question to be put in this way, for unless the defendant by his negligence subjected the decedent to dangers other than those normally incident to his employment the plaintiff cannot prevail.
Bogdan was a helper to Rosinsky, a steamfitter engaged in work about the yards of the Erie Railroad Company. Rosinsky was the only witness to the accident, and his testimony was the only evidence given in proof of the defendant’s negligence. It was substantially as follows;
The night being cold, the defendant “had the steam on the switches.” Under orders, .Rosinsky with Bogdan, his helper, went upon the tracks to test the steam in the switch pipes. As work of this character, like that of trackwalkers in a yard, is highly dangerous, men, when called upon to do such work, were formed into gangs of two, or three, or four. At this time the gang consisted of only the two men named. It was the duty of one to watch while the other worked. Bogdan was not a new hand. On the night in question, perhaps because it was dark and snowing hard, Rosinsky, the superior, handed Bogdan a lantern, and, giving him the task of watching, told him explicitly to look out for trains and cautioned him to avoid danger by standing at least 4y2 feet clear of the track. Bogdan’s face was turned in the direction from which any train moving on that track would come. Rosinsky, with his back toward any on-coming train, leaned down to gauge the steam. Suddenly Bogdan and his lantern disappeared and Rosinsky realized that Bogdan had been struck and carried away by a train.
At the trial, Rosinsky gave no testimony as to a reasonable, “usual or customaiy notice” to track employes in such situations, but testified that there was no headlight on the engine at the time Bogdan was hit.
Erom the lack of details of the accident and the limited description of the place of the accident, showing little more than that it occurred on the main right of way, yet within yard limits, we find nothing which imposed on the defendant a duty to warn the decedent by sound of the approaching train. Bogdan was a trackworker within the class of trackwalkers, who, because of the very nature of their work and the impracticability of giving, them warning, are held to assume the risk of the great dangers normally incident to their employment. Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. Ed. 758; Connelley v. Pennsylvania R. Co., 228 Fed. 322, 142 C. C. A. 614; Hines, Director General, v. Jasko, 266 Fed. 336; Erie R. Co. v. Healy (C. C. A.) 266 Fed. 342.
As these were issues of fact which bore directly on the question of assumption of risk, we think they, together with the question itself, should have been submitted to the jury. McGovern v. P. & R. R. Co., 235 U. S. 389, 401, 35 Sup. Ct. 127, 59 L. Ed. 283; Director General v. Templin (C. C. A.) 268 Fed. 483.
The judgment below therefore is reversed and a new trial awarded.