Biernacki v. Pennsylvania R.

L. HAND, Circuit Judge. Biernaeki, the plaintiff’s intestate, was an employee of the defendant, the foreman of a gang which regularly repaired 'a section of the track, other than that on which he was killed. He and his gang had been at work on this other section, had completed their work, and ho was walking home with a companion, going west on the east-bound track so as to face all trains. Seeing a long eastbound freight train approaching, he crossed the west-bound traek and went to get a drink at a shanty on the north. When he came out the freight train was still passing, and he walked along the west-bound track. While examining a switch he was struck and killed by the tender of a locomotive which was coming, rear end to, on the west-bound track. The plaintiff proved that no bell or whistle was blown, as it was the custom to do when [678] men are seen ahead upon a track. These were omitted, because the engineer could not keep a lookout, while the east-bound freight train was passing, as it still was, on the side where he sat; and because the fireman on the other side was stoking his fires. The judge dismissed the complaint at the close of all the proof, and the plaintiff appealed. In the case at bar the engineer cannot be charged with fault for not keeping a lookout; the passing freight train kept him within the line of his cab, and the tender blocked his view. The only possible fault was the fireman’s, who chose to stoke his fires while the engineer could not watch. We may for argument suppose that he should have realized that the locomotive was running blind, and that he should have kept watch himself. Even so, it seems to a majority of us that the intestate assumed the risk of the fireman’s negligence under the ruling in Chesapeake & Ohio Railway v. Nixon, 271 U. S. 218, 46 S. Ct. 495, 70 L. Ed. 914. In that case .a trackman, riding on a tricycle, was overtaken without warning and killed by a train, whose crew did not keep proper lookout; and it was held that the intestate had assumed the risk of their omission, and that his administratrix could not recover. We cannot suppose that Nixon was held to have assumed the risk that, though seen, he might be run down without warning. That would be an inhuman rule [Norfolk, etc., Ry. v. Gesswine, 144 F. 56, 58, 59 (C. C. A. 6)] ; certainly in the ease of a man riding a tricycle on a main track, who has more to do than step off; who must stop his tricycle and get it and himself out of the way. If the crew was under a duty so to warn him if seen, the case stands merely for the proposition that they'were under no duty to see him, as we think it does. We cannot see that it makes any difference to prove a custom to signal when the crew does see a man ahead. While this assures trackmen of a warning if discovered, it does not prove that a lookout is being kept. It would be material in showing liability, no doubt, if the signal had been omitted after the man was seen, assuming that any custom were necessary to establish liability in that event; but it cannot do more. The record is bare of any proof that it was customary to keep a lookout for trackmen. While we agree that trackmen might reasonably infer that they would be warned when seen, it does not seem to us that, they would be justified in concluding from that that the crew was on the watch to discover them. Whether or not, if free, we should have imposed such a duty upon the railroad, we are concluded by the ease cited, and have only to say how far it is applicable. 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 Aet (45 USCA §§ 51-59) it is not true that an employee never assumes the risk of his employer’s negligence. Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 503, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Boldt v. Pennsylvania R. R. Co., 245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385; Toledo, etc., Ry. v. Allen, 276 U. S. 165, 171, 48 S. Ct. 215, 72 L. Ed. 513. 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. It is not necessary for us to decide whether the danger of a negligent lookout was such an apparent and known danger; we refer to the point only against the possibility that it might be supposed to have been overlooked. Judgment affirmed.