Pennsylvania R. v. Groves

COXE, Circuit Judge. The parties will be alluded to hereafter as they appeared in the court below, as plaintiff and defendant. The accident occurred on one of the tracks of the New York Central Railroad Company about 1,000 feet east of the passenger station of that company in the city of Buffalo. In addition to the four main tracks there is a cross-over track upon which the defendant’s train, whose locomotive struck the plaintiff, was running just previous to the accident. The defendant’s engine and cars were permitted to use these tracks pursuant to an agreement between the two companies. The plaintiff was the yard conductor employed by the New York Central and had been employed in the immediate vicinity of the accident for more than 20 years. He was thoroughly familiar with the yard in question and the time when regular trains were expected to arrive and depart. He knew also when milk trains and local trains were expected to cross or occupy these tracks. In short, the plaintiff was thoroughly familiar with the entire situation. The Pennsylvania engine which struck the plaintiff had been in the station with a passenger train. The train was then run up on track 3 to a point a little to the east of Louisiana street, where it came to a stop with the engine headed west. Just previous to this time the plaintiff had been attending to his duties as yard conductor and was proceeding easterly when he met the New York Central’s assistant yardmaster and the two men engaged in conversation near the tower 52. At this time the Pennsylvania train and a Susquehanna train were both expecting to proceed to the milk platform on the south side of the tracks. The yardmaster had control of the trains and decided which should cross over first, the movement being controlled by the man in the tower. After meeting at the tower, the plaintiff and the yardmaster stepped over onto the main track No. 1. The two stood there engaged in conversation for about a minute and a half when-the plaintiff was struck by the defendant’s engine which had taken the cross-over and had turned in on main track No. 1. [1, 2] The principal defense urged in this court is the alleged contributory negligence of the plaintiff. This is a defense in the federal courts and must be proved as are other defenses by a fair preponderance of testimony. P. & R. Coal & Iron Co. v. Keslusky, 209 Fed. 197, 127 C. C. A. 555. We think that it cannot be said that standing for a minute and a half on track No. 1 was negligence as matter of law. When Moore and the plaintiff stepped on that track there was nothing to indicate that it was or was likely to be a dangerous place. The plaintiff had a right to suppose that the Pennsylvania engine would [665] take the “Ohio street lead,” which was the natural and customary thing to do. Then, too, the “pot signal” was set against any movement to the west and the plaintiff had a right to rely upon the obligation of any one approaching the place where he stood to proceed with caution, having his engine so under control that he could stop it immediately if danger threatened. There is also a strong presumption to be drawn from the conduct of the plaintiff and Moore. Probably no two men in existence were more thoroughly acquainted with the situation and better qualified to speak than they. Por years their daily vocation had been the management and direction of trains at this point. And yet they stepped upon track No. 1 in perfect confidence that no danger could befall them by so doing. Would Moore, who was the superior officer of the two, have chosen this particular point for consultation with the plaintiff unless he was assured that no danger could threaten ? In risking his own life at this point he practically said to the plaintiff, “No danger can threaten us here.” We are therefore led to the conclusion that the question of contributory negligence was one for the jury and that their verdict that the plaintiff was not negligent cannot be set aside as unsupported by the evidence. The judgment is affirmed with costs.