*1 LINE RAILROAD COAST ATLANTIC COMPANY, ANDERSON, as Administra

Beatrice A. Arthur the Estate of Charles trix of Jr., son, deceased. Ander 15224.

No. Appeals,

United States Court Fifth Circuit.

April 11,May

Rehearing Denied *2 Kirby, charged pro- Howell, Malcolm The first count failure to T. Howell & Fla., appellant. vide The claim of Jacksonville, sufficient hand brakes. for the in second count was substance Atlanta, Lewis, Lewis, Jr., J.T. T. J. plaintiff, a train while as the conductor of Fla., Sanford, Wilson, for Ga., Fred R. engaged directing crew, was in and con- appellee. ducting switching was, operation, Judge, HUTCHESON, Chief Before negligence1 as a result of the of defend- DAWKINS, TUTTLE, Judge, and Circuit agents caught ant, servants, its Judge. District refrigerator the crushed to death between by which at- car and the chain it was Judge. HUTCHESON, Chief engine. tached to the counts, Brought the one in two specifically denied the The defendant Act, Safety Appliance 45 U.S.C.A. § charges count, and, on of each the issues Employers’ under the the other joined, jury. 51-60, the cause tried Liability Act, the 45 U.S.C.A. .to §§ in,2 plaintiff resulting for an damages The evidence moved from the was for suit plaintiff’s instructed verdict the decedent. death of track, engine engine car, (1) or the and after the crossed in Due to a defect its switch, refrigerator roadbed, the the switch failed to roll crossover the car engine allowing go in- the ear and in the first thrown of the crossover track clear stance to. fastening prior After chain down different tracks”. the car subsequent in this instance it movement. was cut loose failed to and the stopped posi- (2) en- failed to move the the crossover and The clear tion fouling gine would be it. he saw the deceased when appeared and chain. car had not between the car When although (3) he saw the into the clear The rolled Conductor Anderson danger, failed, Singletary got place and Brakeman a 14 foot deceased by horn, long engine purpose chain off the to warn the signal. having gong, or of to the car into the clear whistle other of the team track south of con- Singletary Arthur Anderson was the Charles one crossover. attached operated engine from ductor of train 532 end of the chain to the Ander- Jacksonville, Sanford, Florida, Florida, son attached other end to the re- 4, 1950, by the defendant. signal on Nov. frigerator ear. from Anderson On freight train train and the The was a was instructed to move by given engine instructions backward, southward, had been so as perishables pull Mr. Anderson a car of the car clear of the crossover. picked up City, jerks was to be Crescent After on the chain several the car engine upon Florida on the The signal by north. commenced to roll and An- stopped stopped engine on the main line Crescent derson refrigerator while the City lengths four about car from the car continued to roll. “Then leading conductor, Anderson, “south crossover switch” to a Mr. walked “teamtrack” where car FGE car, the head between the chain and question, parked. the car to disconnect the chain from the (Ree. and four cars car, were disconnected 75). which he failed to do” As gave train, refrigerator rest of the the to four miles car rolled south at three per en- instructions for the crew to take the gine by hour Conductor Ander- and four cars into “team track” son was southward at the south of the crossover. car, means end of the car with his back to the through and four cars moved the cross- his face to with the chain in northerly direction, over the front him. None of the front of members of coupled refriger- Engineer except to the the crow were car, gave signal ator and Anderson then positions they where could see the events “jerk by”. This occurring moving. movement after the car started plaintiff’s witness, best described attempt Anderson made one to disconnect Singletary, brakeman, Engineer he said chain from the the hollered coupled get that after gine out, the car is and the en- and “told him to he was backing up get caught.” going starts then “when a cer- speed attained, tain amount of After that Anderson made two more at- allowing tempts slowed down slack to disconnect the chain and the car eaught Then bunch. the car was cut loose from came him. solely one,3 moved from his own with- count while defendant part both counts. out such a'verdict in its favor on fault of the defendant. Pointing out:, denied, decided, These motions were *3 defendant, in favor was verdict ón the first count favor was no that there brake; count in of defendant and on the second defect in the was and that there plaintiff, complete on a favor and a failure of the evidence to $30,000. car, track, the verdict defect the or roadbed ' caused, or had to An- contributed Assigning single error, the denial death; appellant urges upon derson’s us of defendant’s motion for a directed ver- equally that there a find- basis for dict, insisting defendant is here that ing engineer negligent that the was either showing tending there was no or evidence failing to move the he when saw show that there was that the would defendant, causing be crushed or proximately part of failing to warn him death, bell or whistle Anderson's the that evidence and danger. reading undisputed A of the established as matter of law that his unimpeached testimony4 Futch, directly, proximately death resulted by pulling chain, car in motion yelled it with .From time at Anderson the the stopped the was caught until ho was between the car and walking moving in front elapsed. car, the a few seconds .chain rolling was on the transfer an track on Futch lid not know whether Anderson angle moving up with the yell it heard him or testified that but it, pass right undertook to the Anderson “was there” distance disconnect walking, chain from it. twenty-five In thus the de- of about from where En- feet performance was in gineer sitting. ceased the du- of his Futch was. After doing customary ties what caught in such a as above An- described Conductor dangerous thing movement. It was a to do derson was conscious for a short time and customary. walking but it was He was or 15 died within 10 minutes. car, in facing front his back to car the gave signal the when he the “Mr. Lewis: We like to move and was about back 40 or feet on for a d.rected verdict from Futch. alleges the the Count One of cause which Safety Appliance you obeyed signal?” “And Q. violation of the Act. that shown, believe, to have I the satis- We certainly “IA. did.” Court, car failed faction of the that “And Q. Anderson then was between jerked it in the to roll when usual was. right?” the chain and the is that ordinary, customary manner. “Not at A. that time.” enough speed evidence is that it had , gene was he Q. then?” clear if there had “Where into something wrong or been some defect walking along A. “He the side of the.car; in tlie and the evidence ,with got rolling, the car and when he the apparatus braking ease is that speed wanted, car he then we ‘ ,the ailing in', cause the car to roll.” f walked ahead of. the car.” (Emphasis supplied) “Between the. chain- Q. and the car?”- “Yes." A. you “Now make that movement down Q. make, you you?” “Now times, Q. that movement a whole lot of don’t times,, down there .a whole- lot of don’t have had a lot of occasions to do A. you?” put That .is what chain is that.' there for.” “I have had lot . A. of occasions to do way Mr. Anderson did Q. put ‘bthd. that. This is what the chain .is n that job day way was the it was for.” .there wasn’t it?” made, done al attempt Deceased one to release hundred “1 have done it a times A. chain, engineer called him to .to myself.” out, more after which made more look attempts he two say way day before, it that “1 he did Q. to release it customarily done, against it was isn’t is the- him the end of the car. right?” elapsed A few seconds between time ' “Usually.'’ n . called to he time A. the. caught. questioned When further that after whether His. evidence shows the; refrigerator gotten he could have moved the locomotive using up, only eyewitness, steam without con- he testified by,” heavy “jerking tradiction cars be- with impossible chain method Anderson, hind him it and con- direction whose doing being done, peril, realized Anderson’s to make trol the work suggested. customary job man- move usual and the ner, indeed, way, in which he in the same addition, deceased was performed Futch had over a fifteen and year period, front of the car and it so. convinces us that this is and would have been an impossibility On the claim that even if the *4 negligent suddenly engine his own have of motion started the to have contrary danger done so without to the order and direction extreme to the stop who of the conductor to front of engine suddenly and four between the car and the en- gine heavily together injury by loaded cars to so as avoid were linked long. quite chain not we think more to it clear than fifteen feet out did not make a case. that Neither is there basis in evidence undisputed unimpeached finding engineer for a that should eye only of the evidence witness, posi- have warned the conductor of his not establishes this could danger that blowing by of tion whistle done,5 have been that, is settled law ringing it Assuming the bell. that such a standing thus, with the record the signal, only twenty sounded feet disregard may testimony jury to not him would have been understood Pennsylvania Ry. speculation. to turn warning as conductor to him and also Chamberlain, 333, page 288 U.S. at Co. would not have caused to.freeze in 391, L.Ed. S.Ct. 819. Cf. Ar position peril, the circumstances of Smallwood, Cir., nall Mills v. 68 F.2d beyond question the case establish that Kuykendall page at v. United legal duty engineer there was no on the Pipe Cir., Line, 5 Gas 208 F.2d States charge to do this. Anderson was in 921, 922. operation, operation the whole an performed many orders of Under the the deceased the times, he had and there brought complete had to a been was no reason suppose to directed, stop, fully had been not Anderson was not aware of his keep occasionfor was no his situation. there did shout when life, testified, get got hurt, Anderson’s he time save him to out before he that’s got all the time I “No.” had before he hurt.” given steam, say, you your it “You could have “I Q. Q. could have moved you? though, locomotive, you? You had the throt- couldn’t couldn’t you?” quick enough life, A. “Not tle there didn’t to save his then, man was then.” A. “The done no.” given steam, “You Q. could have it many you cars “Now how did have though, you, you couldn’t had you the throt- your the time were sit- locomotive at there, you?” tle didn’t during ting matter of seconds there this caught, “The man A. was done then.” you Mr. the time saw you pull Q. “Steam locomotives when danger at the time he at throttle, pick up motion, on the many you don’t caught, how did cars have they?” your locomotive?” depends opening, “It A. on the valve four ears behind the “I had en- A. you got.” how much steam have gine.” particular day, “This Q. this you have time move “Did Q. pretty opening?” was it fast time?” train between light engine, yes.” sir, “If it is a A. not then.” “No A. any you you “You don’t think Q. “Is there motion could Q. you gotten out if to have the train had have made back started your lapse of time?” to move all?” in that that; pulpwood do A. “I didn’t have all A. “Not with time four cars of me, had time to do was holler and tell no.” I apparently upon authority jury’s their verdict he realized that Anderson was danger, addition, argues sufficiently upheld. but must

not to his be alert - that, him or either did not hear the rule of Lavender v. Kurn Andersor still, he, thought pin pull Co., supra, time Ellis v. Union Pacific R. by. complete and let the car roll where there is a ab- probative support sence facts to nk other- We thi it cannot be contended conclusion reached does reversible error than that con- wise as matter law the instructing appear, in not a verdict ductor was the author active ample sup- evidence in case to this of circumstances which caused his death. jury port the verdict. If, by the evi- as seems to be established dence, negligent in him to con- general operation duct in may as he was that, it must While be admitted doing, we think it not be doubted: opinions appellee cites, the court has taking that in in front gone apparently long way limiting following car so as car moved province judge the traditional toward Ihe it would draw the enlarging that of the in the deter *5 placing chain around in and and mination, hand, on the one of whether keeping position, himself in this from is evidence to take a case to which him, one but himself could extricate jury and, other, on the what the effect solely responsible the deceased was is, yet of the evidence the wheel has not death; certainly for his own and that enough completely far come over to abol may imputed his own fault not be judge ish function of the and make negligence part. defendant as on its jury judges in these cases sole of law

the law, as well as the It facts. is still the separate prov fact and law are It is still law that in a case inces, jury fact for the and law for the negligence kind, proof of this of court, whether, and that under the rule part of defendant is “The essential. right reason, of the evidence as a whole Employers’ Liability Act does probative force, ques is without is not employer not safety make the insurer of the jury of tion fact for the of law but they employees his of while are *' * the court. Law and in Cf. Fact Insur duty on liability *. The of basis his Cases, Review, 23, ance Texas Law Vol. negligence, is his not the fact 1, 17; p. Chamberlayne, No. “The injuries Mod Ellis v. Pa occur.” Union Evidence”, 120(a), 122, Law of ern Sees. Co., 649, 598, cific 329 R. U.S. 67 91 S.Ct. 145, 148 and 149. L.Ed. 572. Quoting from Louisville & N. R. Co. v. Botts, Cir., 164, appellee’s principles, 8 in Under these 173 F.2d which de including Supreme Court, guilty

cisions o:: the insistence that the was negligence, Co., warning Tiller Atlantic Line v. Coast R. 318 444, think, 54, 610; 63 will we U.S. S.Ct. 87 do. L.Ed. Mr. Anderson was experienced Kurn, 645, an many years v. 327 U.S. 66 Lavender 740, S.Ct. railroad conductor of 916; Bailey v. Central service. person 90 L.Ed. Vt. He was the 350, charge 1062, Ry. operation 63 Co., 319 U.S. S.Ct. 87 and all orders signals 4, v. Using 144 and Tenant Peoria & P. and L.Ed. U. came from him. jerk 29, Co., 409, 64 S.Ct. chain as R. 321 U.S. 88 L.Ed. done gathered on, 520, was a usual are and commented cases, and and constant railroading. discussing practice appellee presses With all of those this knowledge, Supreme approach upon his chose us contention that the moving though right effect, from the west or 3 in fact Court ha employers’ terms, -held that disconnect the chain. not in side Just as liability judge anyone dangers, he, is knows of obvious cases the both as urges experienced operator, of the law and facts and knew that an

553 moving contributory assumed, is not a defense and that position negligence goes only diminution foot chain car with fourteen damages. not a of contribu- the chain This is case and cause soon use the slack tory against risk or assumed but him. He to be taut negligence. placing keeping approached front end sole danger position been himself between left side and from east car wholly way, the end of the box car and the chain but he walked of harm’s out locomotive, and at attached to front of the guilty negli- toward Anderson was of extreme all times the car facing gence. chain. While this would diminish and he damages trap of if a clear his the defendant also constituted situation negligence, guilty proof making open, obvious own sitting wholly lacking, engineer Futch, negli- and Anderson’s known, is gence was, law, locomotive, knew as matter of the sole in his in the experience proximate cause of the accident. was a man Atlantic that Anderson Coleman, Cir., 5 This was not the Line R. v. Coast Co. and common sense. 712, job quoted who F.2d and cases cited and man new situation of a 716; dangers 4, page at- from in note Atlantic warned of Coast needed to be Cir., tending Dixon, was not Line R. Co. F.2d It situation on it. Stringfellow known to the v. Atlantic Coast where facts were Line Co., to Anderson. It 290 U.S. 54 S.Ct. not known R. were Futch, situation where not L.Ed. 339. not a directing operations. Anderson, was reversed and the cause *6 steps took place for It a few Anderson remanded for further and not is incon- safety himself proceedings. sistent around corner of the southwest attempts but he continued dis- Rehearing. for On Petition connect and in that brief mo- caught. ment he How could PER CURIAM. have known or believed that Anderson petition It is Ordered that re- would way himself out of not take harm’s hearing in above entitled and num- legal duty ? How could there be a be, hereby bered cause and it is Denied. warn the situation was having Movant advised the court perfectly to Anderson obvious appellee offer no further can evi fatality in a occurred few seconds? The on the trial than adduced dence she duty law is well settled that there is no therefore, reversal, another dangers to warn obvious of known or useless, opinion is trial be therefore, negligence, failing to do that, providing so amended instead C.J.S., Negligence, so. § Notice judgment be reversed and Warning of Known or Obvious Dan- for further cause remanded and not in gers, 599; C.J.S., page Master and proceedings, consistent it and the man Servant, 296, page Foreman v. § following provide, judg will date “The Co., Cir., Texas & N. R. O. F.2d 79. ment Reversed Remanded with di realize in a We rections to enter final Liability Employers’ case defendant”. assumed risk