coma on the following day would seem almost impossible.
The testimony as to coma being an essential part of the claim, we have undertaken to review it to some extent. However, although it received some consideration, it was not the basis of the order of the court. The plaintiff, in order to recover, was required to establish negligence on the part of the defendant or some of its agents, even if absolved from contributory negligence by coma. She has entirely failed to do so.
The first attempt of counsel for complainant to establish negligence is based upon a charge of failure to function on the part of the fireman and brakeman who were killed in the accident. By rule of the Railroad Company it was provided: "If the engineman becomes disabled, the fireman will stop the engine and report to the conductor, and not permit any unauthorized person to be upon it." P. 123, Transcript. Also several of the railroad witnesses stated that it was the duty of the fireman, and brakeman also, to stop the train upon discovering any disability of the engineman. The existence of the rule is a far cry from establishing negligence on the part of the fireman and brakeman. Each of them was killed in the accident and so is entitled to a presumption that he used due care. Each was suddenly put in dire peril without any fault of his own, and even granting the longest possible interval from which the trainmen might have noticed any incapacity of the engineman (assuming incapacity), they had but few seconds in which to act, and could not be held liable for possible mistake. However, all this is purely theoretical. There is no testimony which tends to establish any notice to the dead men of the incapacity of the engineman. Dr. Bruecken, asked on cross-examination: "And there would be no way, Doctor, for you to tell the exact time, from the study of a body, when a person went into a diabetic coma, would there?" stated, "No; especially not in such a short period as this must have been. That would have been utterly impossible." The only testimony throwing any light tending to show any lack of care on the part of the engineman was that of L. H. Dover, telegraph operator at UN Tower, who stated that he realized that engine No. 2750 was not going to stop at Signal 2, only when it was about two car lengths from the signal seconds away from the cross-over switch. What had happened on the engine is known to nobody. It does appear that the fireman was not in his seat, but whether he had left it to examine or warn the engineman is left only to surmise.
In view of the testimony of Dr. Bruecken which leaves it uncertain what the condition of the engineman was, and which makes it quite possible that he was never totally unconscious prior to the collision, and in view of the presumption of due care on their part, it seems absolutely beyond reason to impute negligence to the fireman and brakeman.
Equally chimerical is the claim of negligence on the part of the train crew of engine No. 6200. It will be remembered that the train pulled by that engine had been given the signal, which authorized it to proceed to enter the New Castle yard over cross-over No. 18.
The first criticism of the engineman on No. 6200, J. W. Frizzell, is founded upon the latter's testimony that he, when he thought engine No. 2750 was back of signal No. 2, had dimmed his lights several times and the engineer on that engine had not responded by dimming his lights. Just what effect this failure to notice his signal should have had upon an engineman having a signal which authorized him to proceed is somewhat hard to say. Mr. Frizzell, in his testimony (Transcript, p. 32) stated in substance that dimming of lights was a matter of courtesy between engineers, sometimes observed and sometimes not. Fox, the fireman, made it "more or less a ruling or an act of courtesy" to dim in passing, and did say there was a rule. Counsel, however, in reading the rules applicable to the accident, failed to read any such rule. In any event the matter is of no moment as establishing negligence.
The next contention of counsel for plaintiff is that Frizzell was negligent in failing to sound his whistle as engine No. 2750 approached his train. This contention is bound together with the contention that Frizzell and his crew were negligent in failing, in some way, to notice that the other engine was approaching them. Frizzell testified that he saw the headlight of No. 2750 when he was 40 or 45 car lengths (about 1,700 or 1,800 feet) away. The engine was then undoubtedly upon its own track. As a matter of fact it never did get on Frizzell's track until it was 150 feet away. The switch, as we recollect the testimony, was that long, and engine No. 6200 was just short of the switch when Frizzell discovered that No. 2750 was moving. By his testimony the engine was four or five car lengths away (160-200 feet) when he realized that it was moving, at which time it must still have been on his own track or just about entering the cross-over. During this time he was moving forward upon a signal which allowed him to proceed. That it would have been possible for him or his crew to have earlier discovered that engine No. 2750 was past its signal and about to enter the cross-over is supported by no testimony whatsoever.
Counsel for complainant has alleged that the court erred in sustaining objections to an inquiry as to the time a fireman must act when the engineer was incapable or where a red signal stop was involved. This was to a question that theretofore had been answered. See Transcript, p. 44-5-6.
The other objection was based upon a failure to produce the best evidence -- the rules. How the accident could have been prevented by blowing a whistle is difficult to see under all the testimony.
Finding no evidence of negligence on the part of the defendant, the motion for a new trial will be denied.
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