Jennings v. Philadelphia, Baltimore, & Washington Railway Co. ( 1907 )

Mr. Chief Justice Shepard

delivered the opinion of the

Court:

1. The first question raised by the errors assigned on the action of the court involves the legal relations of the plaintiff and the employees of the defendant, whose alleged negligence in opening the switch in front of plaintiff’s engine is claimed to have been the proximate cause of the injury complained of. Were they fellow servants ?

The defendant owned, controlled, and operated' the tracks, switches, and appliances necessary for entrance to and egress from what is known as the Pennsylvania station in the city of Washington. By some arrangement between the defendant and the Southern Railway Company, an independent corporation, the latter ran its trains into the station, using the defendant’s tracks between the same, and its connection therewith at or near the Potomac river. The train .employees of the Southern Railway Company, whén running on defendant’s tracks, were subject to the rules, regulations, and orders of the latter. These rules and orders related to the movement of the trains, the observance of signals, and nothing more.

The law seems to be well settled that an arrangement of the kind between independent corporations does not make the employees of the owner and the licensee, respectively, fellow servants, so as to bring them under the rule of law applicable to such relations. Philadelphia, W. & B. R. Co. v. State, 58 Md. 372; Kastl v. Wabash R. Co. 114 Mich. 53, 72 N. W. 28; Ziegler v. Danbury & N. R. Co. 52 Conn. 543, 555; Robertson v. Boston & A. R. Co. 160 Mass. 191, 35 N. E. 775; Re Merrill, 54 Vt. 200.

The judgment therefore cannot be supported on this ground.

• 2. The next question in due order is that relating to the alleged negligence of the defendant.

It appears that there was what is called a block on the main line which the Southern Railway trains used, extending from 9th to 14th street. At .each end of this block was a tower provided with the customary signals, and constantly occupied by an operator. The rules of the defendant, in which plaintiff had been instructed, required this block to be kept clear, that is, unoccupied .and unobstructed, for the space of ten minutes preceding the arrival of a regular scheduled train, which plaintiff’s train was; and it was “the duty of anyone desiring to occupy the main line, to protect the track and to notify the man in the tower at each end of the block.” When plaintiff approached the 9th street end of the block, with his engine drawing a train of nine passenger coaches, he received the signal indicating that the block was clear, and that he should proceed. About 12th street his engine ran into a switch that had been opened for some unknown purpose by some one of defendant’s employees. Whether this switch was opened before or after plaintiff’s engine entered the block, and with or without notice to the operator in the tower, is immaterial. In either event there was the violation of a rule devised to secure the saffi operation of trains upon the block. The violation or nonobsorvance of this necessary rule of safety constituted negligence in law, and it was for the jury to determine whether it was the proximate cause of the injury. Clements v. Potomac Electric Power Co. 26 App. D. C. 482, 500.

3. It remains to consider the question of plaintiff’s contributory negligence.

There were several switches in the main track of the block on which plaintiff’s train was moving, as well as a derailing device at the crossing of the Alexandria and Mt. Vernon Railway, near the 14th street end of the block. The plaintiff testified that just beyond 12th street there was a permanent distance signal, showing green at night, which warns of the approach to the derailing switch aforesaid. He said that the derailing signal was a “fixed danger, always there, and the signal for the switch at 12th street was a minor trouble.” The signal for the 12th street switch, which is the one that was open on the night of the accident, was “a bull’s eye about 12 inches high with a lens about 4 to 4% inches in diameter, which threw its rays slantingly across the track, instead of parallel with it.” Witness said that he and his fireman were looking out for the lights, but he was watchingpartieularly for the signal for the derailing switch. He said that his train was a heavy.one, drawn by an engine of the largest size, with a very .long wheel base, and w;as moving slowly. He said that the grade was “somewhat nphill until you reach 11th street, and then it is down hill;” that he did not think it possible to see the switch red light of 12th street, until arriving at 11th street, “unless.you are specially looking for that particular light;” that if he had observed the red light when at 10th street he could easily have brought his train to a full stop before entering the switch; that it was about 11th street that he observed the red light; that he immediately put on the air-brakes, and did all that he could to stop the train; but was unable to stop before entering the switch.

Plaintiff admitted that he was familiar with this regulation: “The rules relating to block signals do not relieve men from observing all rules in regard to the protection of their trains.” He was familiar, also, with another, requiring engine men “to keep a lookout on the track for signals and obstructions, and to stop and inquire as to any signal not understood.” He said, further, that there were many' signal lights on the tracks in the block, and that, notwithstanding a signal to enter a block, it was the duty of an engineer to look out for danger signals, and, if he saw one, to come to a stop as soon as possible; that all red lights are danger signals. He further said that as he neared 12th street he saw someone running towards his engine, “flagging him down” and trying to reach the switch ahead of his train; and learned afterwards that it was the engineer of the switch engine with which he was in danger of colliding through passing into the switch.

It being the duty of the plaintiff to keep such a lookout for the danger signals on the track ahead of him as would naturally and reasonably be expected of the average man in his situation and under all the circumstances surrounding him at the time, as testified to, we are not prepared to hold, as matter of law, that he was guilty of such contributory negligence as necessarily to deprive him of' any right of recovery for the negligence of the defendant. The question is a close one,, depending for its prop- ■or answer upon the rules of the defendant, the effect of the signal given plaintiff to enter the block, and the indication thereby •of a clear track, the character and location of the signal lights ahead of him, and the duty imposed upon him to keep a lookout for each and all of them, the nature of the several dangers to be encountered in the block, the character of the track and the engine and train, the reasonableness of the testimony of the plaintiff in respect of the care that he claimed to have exercised, together with all other surrounding circumstances from which fair inferences of care or negligence might be deduced. Where the sufficiency of the evidence to establish a necessary fact is fairly a question of doubt, it is the province of the jury to pass upon it, with proper instructions by the court as to the law of the particular case made by the evidence. The jury are the judges of the credibility of the witnesses and the weight of their testimony, and it is only where all reasonable men can draw but one inference from the undisputed facts that the question to be determined is one of law for the court. Adams v. Washington & G. R. Co. 9 App. D. C. 26, 30, and cases cited; Mosheuvel v. District of Columbia, 191 U. S. 247, 252, 48 L. ed. 170, 172, 24 Sup. Ct. Rep. 57; Morgan v. Adams, Present Term [ante, 198] and cases cited.

4. The last question for consideration involves the plaintiff’s contributory negligence in leaping from his engine after it entered the switch and threatened collision with the switch engine.

It is perfectly plain from plaintiff’s testimony that had he remained upon his engine, which came to a stop shortly-thereafter, he would have received no injury whatever. The engine neither collided with another nor turned over; and the fireman, who remained at his post, was wholly uninjured. If, therefore, the only inference that can be drawn from his testimony is that he was guilty of contributory negligence -in leaping to the ground, the judgment would have to be affirmed; a verdict in his favor upon the other points that have been discussed would avail him nothing.

lie testified that, having done everything possible to stop the engine and protect his train, he called to the fireman to look out, and then sprang down into the street. His apprehension was that his engine would turn over on the light tracks, “which is customary.” “As a rule all side tracks are made of smaller steel, and the tracks do not have the same care.” He had once before leaped from- his engine under analogous conditions, and thought if he stayed there he would possibly be killed or maimed, and that the danger from jumping would be less. He could not take his own gangway because there was a picket fence alongside; and “the distance was so short that I knew if I delayed getting out through that gangway” — the one on the fireman’s side — “the fireman would be pinched off, and an accident would happen between the cab and the engine.” Here, again, the question is a close one, but we think it was one for the determination of the jury. The plaintiff was under obligation to exercise reasonable prudence in looking out for himself if he was, in fact, under a reasonable apprehension of danger. Usually a man of ordinary prudence and judgment will not recklessly rush into danger; at the same time one must suffer the consequences of his unreasonable action under the impulse of panic.

Taking into consideration all the circumstances of real or apparent danger which the jury may find to have surrounded plaintiff at the time, it is for them to determine, as a fact, whether the plaintiff’s apprehensions had a reasonable foundation, and his action was such as a man of ordinary judgment and caution might reasonably have taken under like conditions. An act done in the presence or under a reasonably well-founded apprehension of impending danger, for the purpose of escaping therefrom, may not, in the contemplation of law, constitute contributory negligence, though it may in fact have contributed to the production of the injury complained of. Washington & G. R. Co. v. Hickey, 5 App. D. C. 436, 471.

That was a case where a passenger, reasonably apprehending a collision, leaped from the car and sustained injuries which would not have happened had she retained her seat. The principle, however, is equally applicable in a case like the present, if tbe conditions of danger result from the ascertained negligence of the defendant.

Finding no support for the direction of the verdict for defendant in either ground relied on, the judgment must be reversed, with costs, and the cause remanded for a new trial.

Reversed.