De Baur v. Lehigh Valley R.

MANTON, Circuit Judge (after stating the facts as above). [1] The action is' brought under the federal Employers’ Liability Act (Comp. St. §§ 8657-8665), and it is conceded that the plaintiff below is entitled to the benefit of the provisions of this act. If the defendant below was negligent, it must be predicated upon fault or neglect on the part of the engineer in charge of the train which struck the deceased. The statute permits a recovery against the carrier for death resulting in whole or in part from the negligence of its officers, agents, or employes. It abrogates the common-law rule, known as the fellow-servant doctrine, by placing the negligence of a coemploye upon the same basis as the negligence of an employer. It, however, saves the defense of assumption of risk in cases other than those where the violation by the railroad company of the statute enacted for the safety of employes may contribute to the injury or death of the employé. Seaboard Air Line v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. The negligent act of the coemployés stands to the question upon the same basis in predicating liability, as the employer’s own negligence, and it will be noted that the act permits a recovery where the death results in or from the negligence of any of the employés of the road. “We must look at tlie situation as a practical unit rather than inquire into a purely logical priority.” Union Pac. R. R. v. Hadley, 246 U. S. 331, 33 Sup. Ct. 319, 62 L. Ed. 751. [2] Upon what evidence here could negligent operation be predicated? The duty which was owed by those in charge of the train which [967] struck the deceased was that, when the deceased was first seen sitting on the track, the engineer was obliged to use .all means at his command to stop the train. If be discovered the deceased in his position of peril, it was incumbent upon liim to exercise ordinary care to stop his train and prevent the accident; but from the foregoing facts it is apparent that the engineer did all that could be expected of a reasonably prudent man under similar circumstances. He honored and. obeyed the signals, blew his whistles at the customary points, and proceeded with a reduced speed of 16 to 18 miles an hour over the track in the block where the danger signal was shown. He did not know of the presence of the deceased in his position of peril until informed by the brakeman seated on the tender. His position in the cab was such that he could not see that far ahead on the track because of the embankment; also the curve. As soon as he was advised of the deceased’s position, he did all that he could do to bring his train 1o a stop. But he received notice of the deceased’s peril too late. This testimony is offered solely as the plaintiff’s evidence. There is no evidence to show that the deceased was, in fact, sick. We are only asked to infer that solely .from his sitting, apparently unconscious of the approaching danger. Nor is there evidence to indicate that the engineer from his position, if exercising due care, could have seen the deceased in his position sooner than he did. The testimony of the empioyé of the attorney of plaintiff below, who says that he looked from the point where the. deceased was sitting on the track and could see a mile, is not helpful; lie was not in the position of the engineer, who was riding with the lender first, and thus his view obstructed. The witness’ view was not the view that the engineer had, and therefore is not instructive. Nor is there evidence to show in what space the train, with a similar number of cars, brakes, and rail of like condition, could have been stopped. The case differs very materially from Bragg v. New York Central R. Co., 228 N. Y. 56, 126 N. E. 253. In that case it appeared that the deceased worked 29 hours of continuous labor and fell asleep from exhaustion on the track. The track to the west of the deceased, from v. bids the train which struck him came, was practically straight, with a slight grade, for nearly a mile, and on a bright sunny day, and with dry rails, the train came on and struck him. There was expert testimony indicating that Ihe train could have been stopped, within the distance, in time to avoid the accident. These facts distinguish that case from the case at bar. [8] The defendant below is liable if it could have avoided the death In- the exercise of ordinary care after actually discovering his perilous sil nation. We think the engineer here did all that could be expected of him under the circumstances, and that the plaintiff below has failed to sustain the burden of proof of establishing negligence on the part of the defendant below, which would require the District Judge submitting tin's case to the jury. Judgment affirmed.