82

270 res. 654, 70 L Ed. 783, 46 Nup Cf.352.

The question came before this court in 1916 in Erie R. Co. v. Krysienski, 238 F. 142, 151 C. C. A. 218. In that case the plaintiff worked as a laborer in the railroad company's machine and repair shop. In the shop, dirt and grease were removed from engine parts prior to repair work, by immersing the parts in a vat containing a hot fluid. The evidence showed that the man was injured by falling into the vat through the negligence of the railroad, and while engaged in inserting or removing, or otherwise handling, one or more of the engine parts then immersed, or about to be, in said hot fluid. The evidence did not render it possible to declare whether or not that particular engine part which the plaintiff below was handling at the time he was injured had been, or was again to be, used in interstate commerce. In order that the plaintiff could recover, it was necessary for the jury to find that he was at the time of his injury engaged in interstate commerce. The jury found in his favor, and on writ of error the case was brought into this court and the judgment was affirmed. In the opinion in that case Judge Hough, writing for this court, said:

"When plaintiff below rested, there was evidence showing that some of the parts in the vat belonged to engines owned, used, and to be used by the defendant itself, as distinct from any of its controlled or subordinate companies. If Krysienski was hurt while laboring on any of these portions of machinery, it is admitted that the statute was applicable. In Pittsburgh, etc., Co. v. Glinn, 219 F. 148, 135 C. C. A. 46, the court said: 'Where the facts show the case may well have been within the statute, the initial burden is satisfied, and it is for the defendant to show the contrary.' We agree with this ruling. Applying it to the present cause, the plaintiff below showed circumstances produced by the orders or business customs of the Erie Company, to which the statute could apply; the burden of proof then lay on the defendant below to show inapplicability. Such burden admittedly has not been borne."

We are not able to distinguish the facts in the two cases above cited from the facts in the present case, and therefore, upon their authority, affirm the judgment.

HOUGH, Circuit Judge, dissents, being of opinion that there was not enough evidence to show interstate operation, even to the jury, much less to justify a direction of verdict.

LEHIGH VALLEY R. CO. v. CIECHOWSKI.* (Circuit Court of Appeals, Second Circuit. December 7, 1925.)

No. 100.

1. Carriers 316(5)-Injury of passenger from derailment of train raises presumption of negligence.

raises presumption of negligence, which, in abInjury of passenger by derailment of train sence of explanation or proof to contrary, will sustain verdict against carrier.

2. Carriers 316(5)-Doctrine of res ipsa loquitur applies, where passenger is injured by derailment of train.

Doctrine of res ipsa loquitur applies, where

passenger is injured by derailment of train, and question for jury is whether preponderance of evidence is with plaintiff.

3. Carriers 301-Timely crossing signal by engineer held necessary.

Engineer, being charged with knowledge of obstructions to view at crossing, which he saw automobilist approaching, and fact that long freight train on parallel track would put warning signal in operation and might drown signals of his on-coming passenger train, which was derailed by collision with automobile, injuring passenger in train, should have given timely crossing signal.

4. Carriers 320 (22)—Whether engineer used brakes timely, and automobile became entangled in locomotive, causing derailment, held for jury.

In action for injuries to passenger from derailment of train after striking automobile at crossing, whether engineer used brakes timely and other means at his hand to stop train, and whether parts of automobile became entangled in locomotive, causing derailment, held for jury, on testimony of passengers and railroad employees, weight of whose testimony as interested witnesses was for jury.

6. Carriers 280(1), 288-Greater care than in complying with requirements of Public Service Commission may be required of carrier; carrier may be required to maintain flagman and gates at crossing of much-traveled highway.

Carrier, in protection of passenger, may be held to a higher degree of care than is exercised in complying with requirements of Public Service Commission, and may be required to provide flagman or gates at surface grade crossing at right angles on much-traveled highway, in ad*Certiorari denied 46 S. Ct. 352, 70 L. Ed.

cleared the crossing. This signal was in operation at the time of the collision. Lake street is a state highway and is a busy thoroughfare. The station is 455 feet east of the crossing. The station siding runs westerly from the east-bound main track, and the frog of the siding where it enters the west-bound track is 837 feet distant. There is a bridge about 1,617 feet from Lake street. A snow fence is situated along the right of way of the railroad west of Lake street, about 70 feet south from the southerly rail of the track. There is a descending grade in the vicinity of Lake street. The drop is about 20 feet from Lake street to a point about one mile east of Lake street.

The traveler upon the highway approaching the railroad tracks, going from south to north on Lake street, in the direction the automobilist was proceeding, would have a view which would be somewhat obstructed by the snow fence. This fence was about 311 feet long. There is a rise in Lake street proceeding toward the crossing. The automatic type of signal used at the crossing was prescribed by the Public Service Com

MANTON, Circuit Judge. On May 13, 1922, the defendant in error was a passenger going from Chicago, Ill., to Freeland, Pa., on an express train owned and operated by the plaintiff in error, and was severely injured when the car in which she was riding, with others, was derailed east of the Lake street crossing near North Leroy station in New York.

The train was proceeding easterly at 60 miles an hour. Just before the derailment, an automobile came into collision with the locomotive at the Lake street crossing. The sole occupant of the automobile was killed. North Leroy station is on the main line, a few miles east of Batavia, N. Y., and crosses at grade and at right angles. There are three tracks, east-bound, westbound, and a passing siding. The east-bound is the southerly track, the west-bound is in the middle, and the track on the north is the siding. There is an automatic warning signal of the banjo type on both sides of this crossing. It is mounted on a steel post, and in the center of the banjo is a glass disc, and a red flag drops down when the train is within ringing distance. The bell commences to ring a warning. The signal continues to operate until the last car of the

About the time the automobilist was crossing, a freight train of 80 cars passed in the opposite direction from which the train which struck him was coming. It had just about passed the crossing. There was a rumble of the cars of this passing train, which may have drowned out the signals for the crossing which it is claimed were given by the on-coming passenger train. An automobilist, intending to cross to the opposite side of the track, said he did not hear the warning signals. The passing freight train would also put in operation the crossing signals and exhibit the red light of danger.

After the collision with the automobile, the small wheels of the locomotive left the track and the train went about 1,800 feet to half a mile before stopping. The engine remained upright, but off the track, and some of the cars went over the embankment at various angles; the car in which the defendant in error was seated among them. There is evidence that parts of the automobile became stuck firmly under the locomotive, and marks of the gouging out of the bed of the railroad were found. Plaintiff in error claims that the derailment of the cars was brought about through no fault of it, but was due to the collision of the automobile, and that the latter was solely at fault for the collision with the locomotive. The

defendant in error's claim of negligence is that the engineer failed to operate the train carefully and was in part at fault for the collision at the crossing; also that the plaintiff in error was guilty of negligence in not maintaining gates or flagman at this crossing. These respective claims were submitted to a jury and the verdict returned in favor of the defendant in error.

[1,2] It is argued here that the court should have directed a verdict for the plaintiff in error, and that error was committed in permitting a recovery to be had upon the theory that it was negligent in failing to have a flagman or gates at the crossing. Where a passenger is injured by the derailment of the train, there is a presumption of negligence on the part of the carrier, which, in the absence of some explanation or proof to the contrary, is sufficient to sustain a verdict against it for such derailment is considered prima facie a breach of the contract to carry safely. Patton v. Tex., etc., Ry., 179 U. S. 663, 21 S. Ct. 275, 45 L. Ed. 361; Gleeson v. Va. R. Co., 140 U. S. 435, 11 S. Ct. 859, 35 L. Ed. 458; Plumb v. Richmond Light Co., 233 N. Y. 285, 135 N. E. 504, 25 A. L. R. 685. The fact of the occurrence warrants the inference of negligence, and the doctrine of res ipsa loquitur comes into application. This means that, when the evidence is all in, the question for the jury is whether the preponderance is with the plaintiff. The explanations made, especially if given by interested witnesses, are for the jury. Chicago v. Irving, 234 F. 562, 148 C. C. A. 328.

The danger of collisions at crossings and the danger resulting from derailments must always be considered by those in charge of the transportation of passengers. The management and control of the transportation is wholly confided to the employee of the railroad company, and the passenger cannot be expected to be on the watch, either as to its management or as to dangers from collision. Therefore, when a derailment occurs, there arises a presumption of negligence on the part of the carrier. This presumption arises because of the duty of the carrier to exercise the highest degree of care in the management and operation of its trains. It is required to exercise that degree of care and skill to avoid the accident which human prudence and foresight should have suggested under the circumstances.

[3] If, as it is argued by the plaintiff in error, the derailment was caused by parts of the automobile becoming intermingled with the trucks of the locomotive, the question of fault

on the part of the railroad company which in any way contributed to the collision at the crossing is important. The trial court let the jury say whether the engineer exercised reasonable skill and precaution to avoid the accident, exercising such skill and foresight as was commensurate with the situation, and said that, if he failed in the circumstances, his failure entitled the plaintiff to recover. That timely signal for the crossing should have been given could not be questioned. The engineer knew or was charged with knowledge of the obstructions to view at the crossing; with the fact that on a parallel track a freight train consisting of 80 empty cars would put in operation the warning signal, and might drown the signals of his oncoming passenger train, and thus confuse the automobilists on Lake street. He may have taken the warning signal as advising him of the passage of the freight train. The engineer was likewise obliged to take these facts into his calculations. He testified that he saw the automobilist approach, and he lost sight of him, and, when he next saw him, he was just coming out of the snow fence, and at that time the engineer was 400 or 500 feet away. There was the snow fence, a building, and a train proceeding in the opposite direction to obstruct his view. A witness who said he was on the opposite side of the track, intending to cross Lake street, testified that he did not hear the whistle of the locomotive.

[4] There was evidence of employees of the plaintiff in error and others who heard the signals. The engineer said he put on his brakes and tried to stop or slow down the train when he saw the automobilist four or five hundred feet away. There is testimony of passengers in the train who felt the brakes applied after the impact. Whether the engineer used the brakes timely and other means at his hand, such as the sand, to place upon the tracks, were questions of faet under this proof for the jury. They had the duty to say whether the engineer approached this crossing under the circumstances with that caution and alertness which he was obliged to, having in mind his obligation toward his passengers to exercise a high degree of care. The effort to stop the train, the caution which was exercised by those in charge of the locomotive, was given by the employees, who are interested witnesses, and the weight of their testimony was for the jury. The jury may have disbelieved the statement of the engineer as to his use of the brakes, and have found that he failed to avoid the collision, or failed in sounding

and who is injured by the failure of the company to afford him such degree of care as the nature of the business it is engaged in requires of it.

The rule laid down by the Supreme Court of the United States is that a carrier of passengers, a steam railway, is bound to exercise the utmost care and diligence, or the highest degree of care, prudence, and foresight, for the safety of the passenger. In Philadelphia & Reading Railroad Company v. Derby, 14 How. 468, 14 L. Ed. 502, the court declared that, when carriers undertake to convey persons by the powerful agency of steam, public policy and safety require that they be held to the greatest possible care and diligence.

In Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115, the court, affirming Chief Justice Taney on the circuit, said that, although the carrier does not warrant the safety of the passengers, at all events, yet his undertaking and liability as to them go to the extent that he, or his agents, where he acts by agents, shall possess competent skill, and "as far as human care and foresight can go he will transport them safely." This was later approved in New Jersey R. & Transp. Co. v. Pollard, 22 Wall. 341, 22 L. Ed. 877, in an opinion written by Chief Justice Waite. And in Pennsylvania Co. v. Roy, 102 U. S. 451, 26 L. Ed. 141, Justice Harlan, after referring to the decisions of the court, went on to say that they "show that the carrier is required, as to passengers, to observe the utmost caution characteristic of very careful, prudent men. He is responsible for injuries received by passengers in the course of their transportation which might have been avoided or guarded against by the exercise upon his part of extraordinary vigilance, aided by the highest skill."

In Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 443, 11 S. Ct. 859, 862, 35 L. Ed. 458, the court said: It is the "settled law in this court that the happening of an injurious accident is in passenger cases prima facie evidence of negligence on the part of the carrier, and that (the passenger being himself in the exercise of due care), the burden then rests upon the carrier to show that its whole duty was performed, and that the injury was unavoidable by human foresight."

And in Pennsylvania Co. v. Clark (C. C. A.) 266 F. 182, 188, the Circuit Court of Appeals in the Sixth Circuit said: "The jury were told that 'the carrier is liable as to passengers to observe the utmost caution characteristic of very careful and prudent men'; also that it was responsible for in

juries received by a passenger ‘which might have been avoided or guarded against by the exercise upon the carrier's part of extraordinary vigilance, aided by the highest skill'; and again this due care was defined as 'the highest possible degree of care, aided by the highest skill and performed with the utmost diligence upon its part and upon the part of its employees.' This instruction was well within the authorities."

See, also, Memphis St. Ry. Co. v. Bobo, 232 F. 708, 711, 146 C. C. A. 634.

Shearman & Redfield on the Law of Negligence (6th Ed.) vol. 2, § 417, p. 1028, speaking of railway companies crossing highways, says: "The company is not bound, as matter of law, to erect signs and station flagmen to give signals at crossings, but the jury may find, in view of the danger and difficulty of a particular crossing, that it was negligence to omit such precautions." And in a footnote it is said that "whether failure to provide gates, lights, or flagmen is negligence is generally held a question for the jury."

It has been held that the fact that a municipal ordinance requires a flagman to be stationed at all street crossings is competent evidence bearing upon the question of the company's negligence under the circumstances. See McGrath v. N. Y. Central R. Co., 63 N. Y. 522; Pittsburgh, etc., R. Co. v. Yundt, 78 Ind. 373, 41 Am. Rep. 580; Eichorn v. New Orleans, etc., Ry. Co., 112 La. 236, 36 So. 335, 104 Am. St. Rep. 437.

The court in its charge to the jury properly instructed that, because of the contract of transportation, it was the understanding that the plaintiff should be safely transported. The jury was correctly told that from the mere occurrence of the accident and the consequent injuries inflicted upon the plaintiff a presumption of law arose that defendant had not exercised due care, and that the burden rested upon the defendant to show that it performed its entire duty, and the accident was not occasioned by its failure to do its full duty. The jury was also properly charged that defendant did not insure the absolute safety of the plaintiff under and by virtue of the contract of transportation.

But the court's charge as to the failure of defendant to maintain at this crossing a gate or a flagman has been strenuously insisted upon as a most serious and prejudicial error, one making necessary the reversal of the judgment. Before expressing my opinion on this question, upon which this court is divided, I desire to direct attention to the circumstances and to the exact language of the charge.