240 F. 649 | 4th Cir. | 1917
Lead Opinion
Charles McGuin, a section man, was struck and killed by one of the defendant’s locomotives on January 22, 1912. In this action under the federal Employers’ Liability Act, his administratrix recovered a verdict for $3,000 for the benefit of his wife and children.
Prior to the day of the accident, McGuin had been engaged in tire usual track work done by section men. On that day, by direction of the track foreman, he was working with Parati, a road engineer, who was surveying and setting stakes with the view of improving a curve by a slight change in the track. At the point of the accident the road was double-tracked, and, owing to a broken rail in the north-bound track, a north-bound passenger train was running at about 35 to 40 miles an hour on the south-bound track. A few minutes before the approach of the train, Parati, the surveyor, had sent McGuin north to a designated point to hold a rod by means of which he intended to take a back sight. McGuin started on the north-bound track looking for the designated station. When in a cut on a curve, where he would have been able to see the approaching train only 661 feet, he was struck by the engine and killed. Parati completed the work by placing the stakes to guide the trackmen in changing the rails, but the change in the track was never made. The defendant is a carrier of both intrastate and interstate commerce.
The case of Pedersen v. Delaware, etc., R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, seems conclusive on the first point. It was there held that the work of keeping in repair the track, roadbed, and other instrumentalities of a railroad engaged in interstate commerce is so closely related to interstate commerce as to be in practice and in legal contemplation a part of it. The work held to be a part of interstate commerce was the carrying of bolts or rivets to be used in taking out an 'old girder of a bridge and putting in a new one. Here the work was surveying and marking the changes to be made in the position of the cross-ties and rails, so as to make a better curve. No distinction can be founded on the failure of the railroad to complete the work by actually making the changes contemplated. Making the survey was as much a part of the work as laying the rails according to the survey. The numerous cases in which the work was on things which had not at the time become instrumentalities of interstate commerce obviously have no application.
Miller’s testimony differs in the important particular that only the alarm signal was given to McGuin. He says that, standing bn the track looking at McGuin, he saw him, just as he was passing out of sight, change his course towards the south-bound track; immediately after-wards, as the train approached, but before it was in sight, it Jfiew a station signal, which he supposed was for Springfield of Édsall; after the train had passed him, he heard only the alarm signal, and that at the same moment the emergency brakes were applied. Miller, from the conditions surrounding him and McGuin, had his attention concentrated on the train and was on the alert for its signals; and if his testimony be accepted on the point of difference between him and the engineer and fireman with respect to the signal, it would support a reasonable inference that, if McGuin heard the train, he supposed it to be on the north-bound track and so moved to the south-bound track to escape it, that, if the fireman and engineer saw him, they must have seen him on or near the south-bound track, and that the engineer gave no signal to warn him of the unusual fact that a north-bound train was approaching on the south-bound track until it was too late for him to escape. ■
Affirmed.
Dissenting Opinion
(dissenting). I am unable to concur in affirming the judgment in this case, because of my conviction that nothing was shown which would warrant the jury in charging the railroad company with negligence. The majority opinion concedes that any additional hazard resulting from running a north-bound train on the south-bound track was a risk assumed by tire employé, but holds that this somewhat unusual movement called for greater care for the protection of those at work on the right of way. Granting this to be so, the question nevertheless remains whether there was any proof which-permitted an inference of failure to take every reasonable precaution which was required by the actual situation. If the testimony of tire engineer and fireman, the only eyewitnesses of tire accident, is to be believed, it cannot be doubted that McGuin had ample warning of the approach of the train and could plainly see that it was on the southbound track. It is undisputed that from the point where he was struck there was an unobstructed view of the train when it was still at a distance of some 660 feet, or about an eighth of a mile. And in my judgment it does not matter whether the engineer blew a crossing signal or an alarm signal when McGuin was first seen, because the signal then
But the jury were permitted to disregard this testimony, and to find that no warning was given until too late, because Miller says that he heard a station whistle, probably for Edsall, and then, after an interval, a danger signal, which was doubtless the one given when the train was right upon McGuin. In other words, because Miller did not hear the crossing signal, to.which the engineer and fireman testified, the jury were allowed to find that the crossing signal was not given, and therefore that McGuin had no warning that a train was coming, much less that it was on the south-bound track. This seems to be the theory upon which the recovery is sustained, although .in the brief of defendant in error it is assumed and asserted that a crossing signal was given, from which it is argued that:
“If the engineer had blown the true danger signal when he blew the false crossing signal for McGuin, the latter would more.likely be living than dead.”
Moreover, Miller was at a considerable distance to the south, around the curve in a cut, and the train was still further south of him, so that he could not yet see it, when the station signal he mentions was given, and it was three or four minutes after McGuin had passed entirely out of his sight before he heard the danger signal. He could not know, and did not attempt to say, how far McGuin had gone, or where he was walking, when the train got where the engineer could see him. Yet on this alleged discrepancy between the testimony of the engineer and fireman, and the negative testimony of Miller, who does not say that a crossing signal was not given when the train was still an eighth of a mile from McGuin, the jury is upheld in ignoring the positive testimony of two reputable witnesses — convicting them in effect of deliberate perjury — and rendering a verdict which, as I see the case, has only the support of pure speculation.
I think a verdict should have been directed for the defendant.