Vest v. Atlantic Coast Line Railroad

BbogdeN, J. A young white man is employed by a railroad as a member of a track crew, and is engaged in leveling tbe track at a street crossing in a town in South Carolina. He bad been engaged in work for two or three months. "While so engaged, an extra freight train approaches in tbe daytime, traveling at a speed of thirty-five or forty miles an hour. Tbe workman has bis back to tbe train and is apparently scattering screenings or gravel about tbe end of tbe crossties. *83 All other workmen in the squad leave the track in safety, but the deceased remains and is struck in the back by a beam of the engine and killed. At the point of the killing the track is “perfectly straight” for a distance of some three to seven miles, and there are no obstructions to the vision of an employee. At the trial practically all of the witnesses for the defendant assert that signals were given both by whistle and bell. A witness for the plaintiff testified that the whistle was blown about a quarter of a mile from the place of the killing and not thereafter, but that he “heard the noise of the train, the closer it came to the street crossing the more noise it made. I guess everybody knew the train was coming. It was - making enough noise so that people with good ears could have heard it if they had been listening for it.” TJpon the foregoing facts the sole question of law involved is the correctness of the judgment of nonsuit. Obviously this question must be solved by application of the principles of law held and promulgated by the Federal courts. Apparently the leading decisions of the Supreme Court of the United States on the subject are Aerkfetz v. Humphreys, 36 Law. Ed., 158; Chesapeake & Ohio R. Co. v. Nixon, 271 U. S., 218, 70 Law Ed., 914; Rocco v. Lehigh Valley R. R. Co., 288 U. S., 275, 77 Law Ed., 743. See, also, Biernacker v. Penn. R. R., 45 Fed. (2d), 677, and S. A. L. R. Co. v. Horton, 233 U. S., 492, 58 Law Ed., 1062. In the Nixon case, supra, the deceased was riding a railroad velocipede in returning home from his work. He was run down and killed by a train traveling in the same direction as the velocipede. It seems that the engineer and fireman were not keeping a lookout. The Court, speaking through Mr. Justice Holmes, said: “If the accident had happened an hour later when the deceased was inspecting the track, we think there is no doubt that he would be held to have assumed the risk, and to have understood, as he instructed his men, that he must rely upon, his own watchfulness and keep out of the way. The railroad company was entitled to expect that self-protection from its employees.” The Rocco case, supra, presents a different aspect of the question. In that case the track inspector was using a railroad tricycle in the course of his duties, and was killed by a head-on collision with a passenger train. The killing occurred “on a blind curve,” where the deceased “could not see the approaching train nor the motorman see him.” Mr. Justice Boberts wrote as follows: “Respondent relies on the duty of a person employed on the tracks of a railroad to exercise vigilance for his own safety, and to keep out of the way of moving trains, and asserts that the chance of a collision was a risk assumed by an employee assigned to work on the roadbed. Aerkfetz v. Humphreys, 145 U. S., 418, 36 Law Ed., 758, 12 S. Ct., 835; Chesapeake & Ohio R. Co. v. Nixon, *84 271 U. S., 218, 70 L. Ed., 914, 46 S. Ct., 495. Those eases applied the principle to accidents on a stretch of tracks where the workman’s view was unobseured. Here, according to- the proof, the curve on which the collision occurred, and obstructions at the side of the roadway, prevented any but a very short view of the track ahead. "We think these facts required that the jury should determine whether the motorman exercised reasonable care to have his train under control, to sound a warning before entering the curve, and to be on the lookout for workmen whose presence might be expected on the day in question, when the waters of the lake were washing over the tracks at this point and inspection and repair might be required. Under the authorities cited the decedent assumed the risks ordinarily incident to his employment as a track inspector, but in the circumstances shown, we do not think they included a failure on the part of the motorman to keep a lookout and to give warning in places where the view of one who1 might be expected to be on the track or approaching in the opposite direction was shut off and the probability of accident was therefore much greater than where the track is straight and the view unobstructed.” Judge Hand, in the Biernaclcer case, supra, rests the decision of the Court upon the Nixon case, supra. He declared: “Finally, it is not clear that even if the custom should be construed as imposing a duty upon the crews to keep a lookout for trackmen, the intestate did not assume the risk of their neglect. Under the Employers’ Liability Act (45 U. S. C. A., secs. 51-59), it is not true that an employee never assumes the risk of his employer’s negligence. ... If the dangers be apparent and known, they are assumed; so far as this may differ from the common law, if at all, the statute prevails.” The Supreme Court of the United States on April 20, 1931, denied a petition for ceriiorari to review the foregoing case. See 283 U. S., 840, 75 Law Ed., 1451. The plaintiff relies upon Reed v. Director-General, 258 U. S., 92, 66 Law Ed., 480, and the cases of Brown v. R. R., 144 N. C., 634, 57 S. E., 397; Moore v. R. R., 185 N. C., 189, 116 S. E., 409; and Moore v. R. R., 186 N. C., 257, 119 S. E., 357. See, also, 71 A. L. R., 461. The Brown case, supra, apparently did not involve the Employers’ Liability Act. Moore v. R. R., 186 N. C., 257, did involve the application of said act. However, the principle of liability invoked in the Moore case, supra, rested ultimately upon the theory that the engineer of the train could see that the deceased was deeply engrossed in his work and wholly oblivious of approaching danger, and that such information was available to the engineer in time to have stopped the train before killing plaintiff’s intestate. The Court is of the opinion that the cases relied upon by the plaintiff are not controlling and decisive. The evidence offered in behalf of the *85 plaintiff disclosed that a signal had been given about a quarter of a mile from the point of injury, and that, although no other signal was heard, “everybody knew the train was coming. I,t was making enough noise so that people with good ears could have heard it if they had been listening for it.” Consequently, full notice of the approaching train was available to plaintiff’s intestate. All other members of the crew were fully appraised of the danger and moved off the track into a place of safety. The evidence for plaintiff further disclosed that at the time of the impact the deceased “looked to be working around the end of the ties.” Obviously, he was not working upon the track at the time he was killed. Although he was not a foreman or an experienced workman, nevertheless he was charged with notice that he was working upon a live track, and that a train was likely to be upon the scene at any time. His vision was unobstructed for at least three miles, and there was no evidence of noises or other traffic movements about the scene calculated to divert his attention or to prevent him from hearing the noise of the approaching train. Therefore, the Court is of the opinion that the ruling of the trial judge was correct. Affirmed. ClaeksoN, J., dissents.