Opinion
No. 81.
December 7, 1931.
Appeal from the District Court of the United States for the Southern District of New York.
Suit by Mary Helring against the Delaware Hudson Company under the Pennsylvania statute as a widow to recover damages for the death of her husband. From a judgment in favor of defendant on a dismissal of the complaint by direction of court at the close of plaintiff's case, plaintiff appeals.
Affirmed.
William Helring, the deceased husband of the plaintiff, was a fireman employed by the Delaware, Lackawanna Western Railroad on a switching engine in its yard at Scranton, Pa. The yard of the defendant at Scranton adjoined that of the Lackawanna, and for a considerable distance to the north and to the south of the point where Helring was killed there was nothing on the ground to indicate the dividing line between the two yards. There was a crossover switch from the tracks of one railroad to those of the other northerly of this place. One witness testified that it was sixty feet away, and, from an inspection of a plan of the location introduced in evidence, it would appear that this was a considerable underestimate of the distance.
On the morning of September 7, 1928, Helring worked until about 9:30 o'clock on his engine switching cars in the Lackawanna yard. It then became necessary for his engine to use a switch in a Lackawanna track on the side of the yard nearest the defendant's tracks. This switch was in charge of a Lackawanna switchman named Davis, and was in use. Davis was standing about ten feet away from the switch in the space between the defendant's tracks and those of the Lackawanna, which were ten feet three inches apart at that point. He was close to the defendant's track in order to see better in the performance of his duty in watching, in readiness to assist, if necessary, the operation of a train then using his switch. This switch was not in a crossover to the defendant's tracks. Helring went from his engine to where Davis was standing and asked him how long the switch would be in use. Davis told him, and turned away from the defendant's track to go back to his switch. Helring turned at the same time toward the track of the defendant, and was instantly struck and killed by the overhang of the tender of a switching engine of the defendant which was just then backing slowly past this point on the defendant's track. This overhang was about twenty inches and roughly to the end of the ties. Davis testified that he did not see or hear this engine until he turned toward it when Helring called out just as he was struck.
The engine which hit Helring was being operated by its fireman, Lewis, with the permission of the engineer. These two men had exchanged places for the time being. The fireman was an experienced man and was a qualified engineer himself. A short time before, the engine had pushed a passenger car up this track and left it about two hundred feet from where Helring was hit. Lewis testified that the trainmen uncoupled the car, gave him a back-up signal which he answered with three short blasts, and got on the front of the engine. He then backed up, and hit Helring whom he did not see, although he was looking toward the rear. Helring was on the side of the track opposite Lewis, who was in the engineer's seat on the right side of the engine. The engineer did not warn Lewis of Helring's presence, and there was no evidence that he saw him, although there was nothing to prevent his seeing him had he looked from that side of the engine. Lewis heard Davis shout when Helring was hit, and immediately applied the emergency brake which stopped the engine within from forty to fifty feet after the application. There was no lookout on the rear of the engine as it backed up, and certainly no signal was given after it started.
When Helring went to ask Davis about the use of the switch, there was no occasion for his going upon or dangerously close to the defendant's right of way, nor was any custom of employees of the one road to go upon the right of way of the other proved, except in making interchange movements of cars, engines, and trains from one yard to the other over crossover switches and in movements incident thereto.
Jacob Klein, of New York City (John C. Robinson and Morris A. Wainger, both of New York City, of counsel), for appellant.
H.T. Newcomb, of New York City (Francis J. McLoughlin, of New York City, of counsel), for appellee.
Before L. HAND, SWAN, and CHASE, Circuit Judges.
The action of the trial court in refusing to submit this case to the jury requires the rights of these parties to be determined on the basis of Helring's having been killed without warning by defendant's engine when operated with no lookout at a time when Helring was on the defendant's right of way because he chose to go there in the performance of the duties of his employment, although there was no necessity for his being there at all. Granted that his inquiry of Davis was necessary and that he had to go to Davis to make it, there was still no need for him to go nearer the defendant's track than Davis was. There is no evidence that Davis at any time was on the defendant's right of way. Taken in the light most favorable to the plaintiff, the evidence shows no more than that Helring suddenly stepped into the path of an approaching engine at a point on the defendant's premises where he was not known by the defendant to be and where the defendant had no reason to expect he would be; that the defendant maintained no lookout for him and gave him no warning; and that he was at once killed.
The plaintiff relies largely on cases which deal with the rights of those who make some permissive use of a railroad right of way and are injured when so doing. These cases have no application to the case at bar, for there was no evidence that employees of the Lackawanna were ever allowed to go upon the defendant's right of way where Helring was killed or ever did go upon it there before. If the evidence can be stretched, and stretched it must be to reach any such conclusion, to the extent of showing that Helring had at least an implied license to go where he did whenever his work so required, we are met at once with the fact that his work did not make it necessary. Moreover, no interest of the defendant or mutual interest of the two railroads was being served by Helring in making an inquiry about a switch used and useable in connecting tracks only of the Lackawanna Railroad and concerning its use by a train not shown to have had any relation to the defendant whatever or made up of any cars destined to go into the yard of the defendant. So there was no implied invitation to Helring to use the defendant's right of way at the place he was killed. See Heskell v. Auburn Light, Heat Power Co., 209 N.Y. 86, 102 N.E. 540, L.R.A. 1915B, 1127. When he stepped upon the defendant's premises, he was doing a perfectly voluntary thing for reasons wholly his own, if he had any reasons whatever, and was bound to accept conditions as he found them so far as any active duty the defendant owed him is concerned. He was entitled to have the defendant exercise due care not to injure him if, and when, he should be discovered upon its premises but there was no duty to discover him when there or dangerously near there. Helring went upon the defendant's right of way at the place and time he was killed having only the rights and being owed only the same duty the defendant would have owed any member of the general public going upon its premises in a similar way at that time and place. Otherwise put, it owed to Helring only the same duty it owed any other trespasser. It was not bound to maintain any lookout on its moving engines for trespassers on its property or to exercise active vigilance to protect them from injury unless their presence was known. Hoyer v. Central R.R. of N.J. (C.C.A.) 255 F. 493; McCarthy v. N.Y., N.H. H.R.R. Co. (C.C.A.) 240 F. 602; Cronopolous v. Penn. Co. (C.C.A.) 259 F. 210; Penn. R.R. Co. v. Rogers (C.C.A.) 244 F. 76.
Some exceptions which were taken to the exclusion of evidence are left unnoticed because they do not affect the decisive feature of this case as now presented. Nor has it been thought necessary, in view of the defendant's freedom from actionable negligence, to consider the subject of contributory negligence, although the deceased stepped directly into the path of a moving engine which he must have seen had he taken the slightest precaution to look where he was going.
Judgment affirmed.