Wolfe v. Atlantic Coast Line Railroad

Bbogdek, J. It having been admitted that plaintiff’s intestate was engaged in interstate commerce at the time of his death, it necessarily follows that the liability of the defendant must be determined solely by the Federal Employers’ Liability Act as construed and applied by the courts of the United States. The rules of liability declared by the Federal Courts of last resort, relating to injury sustained by brakemen and others while at work around and upon shifting trains and shunted cars, are discussed and applied in many cases, notably: C. & M. and S. T. P. Ry. v. Coogan, 271 U. S., 472; Gulf, Mobile and Northern R. R. Co. v. Wells, 275 U. S., 455; Toledo, St. Louis & Weistern R. Co. v. Allen, 276 U. S., 165; Delaware L. & W. R. Co. v. Koske, 279 U. S., 7; Chesapeake & Ohio R. R. Co. v. Mihas, 50 Supreme Court Reporter, 42; Slocum v. Erie R. R. Co., 37 Fed. (2d), 42. In the Toledo case, supra, a car checker was injured by a shunted car. In discussing the merits of the question the Supreme Court of the United States said: “The work of checking ears in a yard at night where switching is being done is necessarily attended by much danger. But fault or negligence may not be inferred from the mere existence of danger or from the fact that plaintiff was struck and injured by the moving ear. . . . On the evidence it must be held that he knew how switching was done there; and, in the absence of proof that he was exposed to some unusual danger by reason of a departure from the practice generally followed, it cannot be held that defendant was in [616] duty bound to give him warning. . . . There is nothing to sustain a finding that plaintiff was in -any danger other than such as was usually incident to his employment or that any member of the crew knew or had any reason to believe that he was oblivious of the situation. In the absence of knowledge on their part that he was in a place where he was liable to be struck and oblivious of that danger, they were not required to vary the switching practice customarily followed in that yard or to warn or to take other steps to protect him.” In the Mihas case, supra, the plaintiff was employed to care for switch lights and lamps along the right of way. In the line of his duty he attempted to climb over a coal car standing on a switch track. While doing so, a string of nine cars was forcibly propelled by means of a flying switch against the standing cars with such force that the plaintiff was knocked off and severely injured. The Court said: “There is nothing in the record to show that employees engaged in the switching operation knew or had reason to believe that Mihas was in any position of danger. In the absence of such knowledge or ground for belief they were not required to warn him of the impending switching operation or to take other steps to protect him.” The plaintiff in the Slocum case, supra, was a switchman and was knocked off a car during a switching operation and killed. Recovery was permitted in the State court upon the theory that he was knocked off by the impact of shunted cars. The Circuit Court of Appeals for the Second Circuit, in denying the right of plaintiff to recover, declared: “There must be proof of some unusual jar, and this was altogether lacking in the present case.” Applying the principles of law to the facts, it is manifest that the switching operation involved in the case at bar was done in the usual and customary manner and according to the usual practice established in the yards of defendant at Rocky Mount. The plaintiff’s intestate, as a switchman of twelve years experience, must have been thoroughly cognizant of the. usual and customary practice in such operations and aware of all the usual hazards incident to his employment. The evidence discloses, without contradiction, that the switching was done in the usual way, according to the customary method, and that there was no departure from the usual practice in making up the train. Moreover, there was no evidence of any unusual jerking or unexpected movement of cars, nor is there evidence that the employees of defendant knew or had reason to believe that plaintiff’s intestate was oblivious to the hazards and dangers which surrounded him. Under such circumstances the Federal Law denies recovery, and the judgment of nonsuit was properly entered. Affirmed.