Norfolk & W. Ry. Co. v. Kratzer

HICKS, Circuit Judge. Action by defendant in error, Kratzer, herein called plaintiff, to recover damages of plaintiff in error, the Norfolk & Western Railway Company, herein called defendant, for personal injuries. The suit was brought under the Ohio Railroad Employers’ Liability Act (Ohio Gen. Code, § 9017, subd. 2). The only question is whether the court erred in denying defendant’s motion for a directed verdict. The main line of defendant’s road runs almost east and west through Winchester. The track is straight and crosses at least three streets of the village. The depot is on the south side of the main track. Opposite the depot is a side track branching from the main about 700 feet east of. the station. A [523] “wye” track and three additional tracks lead from the siding in the station grounds. Plaintiff was an experienced engine tender. At about 5:25 p. m. September 3, 1926, a work train engine was placed on the “wye” by Plummer, the engineer, and turned over to plaintiff for the night. Plaintiff and Plummer “blocked” the engine; that is, put wooden blocks, picked up nearby, under the drive wheels to prevent the engine from creeping. Coonriver, the conductor, observing that the engine was too close to a building, directed the plaintiff to move it, whereupon Plummer said to plaintiff: “Now those" (the blocks under the drive wheels) “are not substantial enough for the second blocking and you will have to look up other blocks." (Italics ours.) About 10 o’clock, because it was lighter in that direction, plaintiff walked eastwardly upon the side track in search for blocks. He continued upon the side track and main track until he had passed somewhat beyond Jefferson street crossing. His search fruitless, he started upon his return, and walked along upon the right side of the main track, evidently upon the ends of the ties, until, near midnight, at a point about 150 feet east of the Jefferson street crossing and just as he began to stoop to remove something from his shoe, he was struck on the hip by the engine of a through freight going west. He did not see or hear the train, and neither the engineer nor fireman saw him. The eleetrie headlights were burning brightly, and the train running slightly upgrade at about 15 miles per hour and presumably on schedule. It is practically undisputed that the engineer and fireman at the point of the accident were watching the block signal at the station about 900 feet away. They were also looking to see if the operator would come out with orders. On approaching the station, the fireman did receive the orders, the block cleared, and the train proceeded. We think that the defendant was entitled to a directed verdict. Negligence was the gravamen of the action and none was shown. Readily assenting that Plummer and Coonriver were superior servants of plaintiff (Ohio Gen. Code, § 9016; Railroad v. Pero, 65 Ohio St. 608, 63 N. E. 1132, affirming same case in 22 Ohio Cir. Ct. R. 130, 12 O. C. D. 25), the fact is that neither directed him to go upon the tracks. He went there of his own choice. He advances no reason, and none except that of convenience can be inferred, for walking the track, instead of along its side. But, assuming that walking on the track was incidental to his search, the situation did not reasonably require that plaintiff’s superiors, even if they were themselves aware of it (which they were not), should notify those in charge of approaching trains of his presence. The track was straight; the night was clear and still; there was nothing to interfere with plaintiff’s vision or hearing. There is no evidence of any custom to wain, or any manner by which warning might have been given. Under such circumstances, defendant was entitled to expect that plaintiff protect himself. Chesapeake & Ohio Ry. Co. v. Annie Nixon, 271 U. S. 218, 219, 46 S. Ct. 495, 70 L. Ed. 914; DeBaur v. Lehigh Valley R. Co. (C. C. A.) 269 F. 964, 967; Buss v. Chicago, R. I. & P. R. Co., 77 Okl. 80, 81, 186 P. 729; Tsiampras v. Union P. R. Co., 104 Neb. 205, 209, 176 N. W. 366. Neither may it be said that the trainmen were negligent. They had no reason to anticipate that plaintiff would be out upon the track at least 900 feet away from his engine around midnight. The engineer and fireman were justified in honoring the signals at the station. This was not negligence; it was their duty. Controverted questions as to whether the engine blew for the station or the crossings are not determinative. The station signal was for the operator, and the crossing signals for the protection of travelers. Neither was intended for plaintiff. His action lies only for a breach of duty to him. Norfolk & Western Ry. Co. v. Gesswine, 144 F. 56, 60 (C. C. A. 6). See, also, C. & O. Ry. Co. v. Mihas, 280 U. S. 102, 50 S. Ct. 42, 74 L. Ed. -, decided November 25, 1929. That plaintiff’s situation was attended with some danger cannot be gainsaid. So is that of every one upon a railroad track. However, such danger was only that usually ■and normally incidental to such environment, and the law requires that he assume the risk of it. He was aware, not only as a matter of common knowledge, but as the outgrowth of experience, that a train was likely to approach at any time. Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 171, 48 S. Ct. 215, 72 L. Ed. 513; Aerkfetz v. Humphreys, 145 U. S. 418, 420, 12 S. Ct. 835, 36 L. Ed. 758; Connelley v. Pa. R. Co. (C. C. A.) 201 F. 54, 65, 47 L. R. A. (N. S.) 867. We do not overlook Southern Ry. Co. v. Smith, 205 F. 360, 361 (C. C. A. 6). We do not think it controls. That was a case where “unusual conditions” tended to interfere with the vision and hearing of the employee and therefore placed a concurrent obligation upon the employer to keep a lookout. The extraordinary conditions were a “drifting” engine, an oil headlight dimmed, by surrounding elec-. [524] tríe lights, and a passing train. Many eases might be cited in which unusual weather conditions were controlling elements. In other eases noise was a factor and in others intervening objects'. These are only illustrative, and serve to differentiate Kratzer’s ease, wherein nothing tended to interfere’with either his sight or hearing or to confuse his faculties, a situation clearly recognized in Southern Ry. Co. v. Smith, supra, wherein it is said with respect to the train operatives “these unusual conditions tend to increase or make active this duty which we have called secondary, and which, under other conditions, might remain wholly latent.” (Italics ours.) The judgment is reversed, and the case remanded for a new trial.