Appeal from the District Court of the United States for the Northern District of New York.
Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
This appeal involves the legal effect of a rule of the defendant railroad company which provided that:
"When a train stops under circumstances in which it may be overtaken by another train, the flagman must go back immediately with flagman's signals a sufficient distance to insure full protection, immediately placing and leaving two torpedoes on the rail, and when necessary, in addition, displaying lighted fuses. * * *
"The front of the train must be protected in the same way when necessary by the baggageman, head trainman or fireman.
"When a train is moving under circumstances in which it may be overtaken by another train, the flagman must take such action as may be necessary to insure full protection. By night, or day when the view is obscured, lighted fuses must be thrown off at proper intervals. * * *
"Conductors and enginemen are responsible for the protection of their trains."
The same general rules contained the following definition of a "train": "Train. An engine, or more than one engine, coupled with or without cars, displaying markers."
In the present case a section gang consisting of four railroad employees, of whom plaintiff's intestate was one, had been engaged in removing a plank in front of the Parker Station on defendant's railroad. They had come to the station on a gasoline motor car known as a speeder, which they had placed on a switch off the main track. When they had finished their work there for the day, they lifted the car over upon the main track and started the speeder in a northerly direction toward Guilford, a place about 1 1/4 miles away, where they were to take care of the switch lights.
Before the speeder was placed back on the main track, a passenger train going north had run by Parker, which was a flag station, and had neglected to stop and leave a passenger. To the north of the station the track ran through embankments and curved westerly, so that the rear of the train could not be seen from the speed car, which was placed on the main track immediately after the train had run past the station.
The passenger train backed up to let the passenger off. The speed car came on toward it at a speed which finally reached about 20 miles an hour, and the four men on it at first could not see the train because it was hidden by the curve, and finally because they sat on the car with their backs toward the direction in which the train was coming. The gasoline motor of the speed car was operated by Eastwood, one of the four men in the section gang. Its motor was skipping, and Eastwood was down on his knees at the time of the collision trying to make it work properly. He met his death when the speed car ran into the train.
The conductor of the train appears to have been at the rear of the last car as his train started to back. He testified that as soon as he saw the speed car (and this was when it was about 300 feet from him) he signaled to stop his train, which was backing at the rate of 5 or 6 miles an hour, and that he succeeded in reducing the momentum so that his train was not moving when the speed car collided with it and plaintiff's intestate was thrown off and received injuries resulting in his death. He also testified that he and one of his crew vainly shouted as he saw the speed car coming down on the train, in order to warn the intestate and his companions. One of the plaintiff's witnesses testified that the train was still "slowly" moving up to the time of the collision.
The flagman did not go back when the train stopped, nor was any action taken by the overtaken train to insure protection other than the blowing of three long whistles, which the engineer testified was a ...