Pennsylvania R. v. Swartzel

PAGE, Circuit Judge. Our opinion on the first appeal of this ease is in 17 F.(2d) 869. Except in particulars here shown, the facts axe there sufficiently stated. On the second trial, some of appellee’s testimony was slightly more favorable to himself than that given upon the former trial. The record shows that the witness Cowan, in the former trial, testified that he heard no whistle or bell sounded. The record here makes him say that neither whistle nor bell was sounded. He testified by deposition, and apparently the difference arose through the method of abstracting the same deposition, used in both trials. Upon the second trial, the engineer testified that it would take him four or five seconds to shut off the throttle and apply the emergency brakes. He explains that the former record, showing that he testified it would take 30 seconds to do that work, was erroneous, and that he did not so testify. We have carefully read and considered those changes, and are of opinion that they do not affect the conclusion that should be reached in this ease. On the second trial a new witness was permitted to testify to the distance within which a train can be stopped. That witness, in nine years, had been a switchman for five different roads, and had fired a few days. Neither his experience nor his knowledge qualified him to answer the questions asked. His testimony that a train going 25 miles per hour could be stopped within 75 to 100 feet, evidently did not take into account the distance that the train would travel during the time consumed by the fireman in transmitting the message to the engineer, and the four or five seconds required for the engineer to shut off the throttle and apply .the emergency brakes. Considering all of the new testimony, in connection with the analysis of the speed of the truck and of the train, and the location of the two after the truck had turned and started north, as shown in our former opinion, the new evidence does not help appellee’s case. . Let us assume that when appellee started his truck, when he was 30- or 40 feet away from the tracks, as testified in this case, he had no intention of stopping until after he had crossed the tracks, and that under the doctrine of. “last clear chance” the fireman should have discovered that fact, then the situation is this: The train was moving at five times the speed of the truck, so that when the truck was 40 feet away (taking the highest figure), the train would have been 200 feet away from the crossing; taking no .time out for the transmission of a message from the fireman to the engineer, and taking four, instead of five, seconds for shutting off the throttle and the application of the brakes, the train would have traveled 140 feet before the applied brakes commenced their work of stopping the train; if the train had thereafter been stopped within the distance testified to by the new witness, 75 feet would have earned it well upon the crossing, and 100 feet would have carried it over the crossing. That result probably could only have been reached by the exercise of the highest degree of care. It may be suggested that, instead of devoting their time to stopping the train, the prudent thing would have been to' blow the whistle. This situation indicates an emergency in which the engineer and the fireman were called upon to act instantly. We have recently held, in Greyhound Lines v. Holier, 36 F.(2d) 443, that one is not to be charged with negligence because, acting in an emergency, he does not choose the course of action that a more deliberate judgment would show was open to him. All the foregoing is upon the assumption that the fireman, in the exercise of ordinary care, must have seen from the actions of appellee that he intended to cross the tracks without stopping, after the start made upon the shifting of his gears. The evidence clearly shows that appellee had no such intention. In the former trial he testified: “When I reached a point 10 feet from the track, I saw the train standing. I then proceeded to cross the track.” Upon this trial, to show that he was in the exercise of due care, he makes it clear that when he got within 20 feet of the track he looked and listened, and again when he got within 10 feet of the track he looked and listened. He could not have looked or lis [753] tened with any other intent than that if he saw the necessity therefor, he would stop. The appellant should not be held to be lacking in the exercise of ordinary care because its fireman did not earlier discover an intention on the part of appellee which his own testimony shows he did not have. Attached is an exhibit showing the crossing. The judgment is reversed. Defendant’s Exhibit No. 1.