Whitcomb v. McNulty

JENKINS, Circuit Judge, after the foregoing statement of the facts, delivered the opinion of the court. We assume that the question of the negligence of the operators of train No. 23 was properly submitted to the jury, .and that its verdict is conclusive upon that subject. The refusal of the court to direct a verdict for the defendant below, and upon which error is here assigned, presents the question whether, as matter of law, the deceased was guilty of negligence directly contributing to his death. If the evidence upon that question is conflicting, its determination falls within the province of the jury, and we are concluded by the verdict; but where the facts are undisputed, or clearly preponderant, they are questions of law for the court. Southern Pac. Co. v. Pool, 160 U. S. 438, 16 Sup. Ct. 338, 40 L. Ed. 485. If McNulty was informed that train No. 23 Avould back upon the siding, it was sheer recklessness to place himself in the position of peril to which he was necessarily subjected. If he was not so informed, lie had no right to assume, if he gave any thought to the subject, that it would not back upon the siding, and had no right to place himself in a dangerous position without warning to any one, and without setting the air brakes, either of which acts would have rendered his person reasonably secure. The rule of the company with respect (o inspectors is not, in a strict sense, applicable here; but, if applicable, it would only declare a duty which the law imposes, — that proper precautions under such circumstances should be taken. Placing himself in a position of great danger with a train near him which he knew must come upon the siding in order to allow the passenger train, upon its arrival, to move westward, he had no right to assume that it would not enter upon the siding, and possibly come in contact with his train, until the arrival of the passenger train; for, as an experienced locomotive engineer, he knew, as all trainmen know, that the actions of those in charge of trains are governed by desire to save all time possible. He was bound to know that it might come in upon that [866] siding in advance of the arrival of the passenger train, that it might come in contact with the rear end of his train, and in the exercise of the most ordinary care he should have provided against such contingency .either by notice to the trainmen, or by the simple movement of setting the air brakes upon his own train. If it was manifest that a blow such as came would drive McNulty’s engine» upon or so near to the main track as to endanger the expected passenger train, that was only an additional reason why he should have taken every reasonable precaution against such a movement of his engine. There was in that situation nothing equivalent to a signal to the crew of the other freight train unless they knew of the danger involved. There is no evidence that they possessed such knowledge, and, if the air brakes had been set, such danger could not have arisen. We think that no argument could add force to the undisputed facts, which disclose incontestably the negligent omission upon the part of McNulty, clearly contributing to his tragic death. In Southern Pac. Co. v. Pool, 160 U. S. 438, 16 Sup. Ct. 338, 40 L. Ed. 485, Pool, a car repairer, went under the last car of a train of 18 or 20 cars, due to leave in a short time, and the car was detached from the train. One Rice was on the watch for any coming car or engine. As an engine backed, Rice called to Kilpatrick, a switchman, to stop the train, and it did so within about six feet of the car. Kilpatrick immediately gave the signal to back again, which signal was obeyed, the caboose striking the car with considerable force. In the meanwhile, Pool, who presumably had gotten out from under the car, went back to his work. His companion saw Kilpatrick’s signal to back down, and cried out to Pool, who was unable to extricate himself, and was caught and injured. The court held that the injury to Pool was the result of his own inexcusable negligence in going under the car without giving-proper signal of, his position, and in remaining there in the presence of impending danger. In Hulien v. Railway Co. (Wis.) 82 N. W. 710, the ease is on all fours with the one we are considering. There, as here, the locomotive engineer went under the engine to perform some duty, while another freight train had backed upon the same track, and its engine was detached, and was switching upon another track. There, as here, the deceased failed to set the brakes upon his engine or upon the train, and failed to notify any of the train crew that he was under the engine, and did not display any signal of warning. In each of these cases the court ruled that, as matter of law, the deceased was guilty of negligence preventing recovery. We are unable to distinguish the case in hand from the authorities cited, and are constrained to the conviction that the court below should have directed a verdict for the defendant upon the undisputed facts of the case.