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Bowser v. Baltimore & O.R. Co.

decided: October 24, 1945; As Amended December 7, 1945.


Author: Biggs

Before BIGGS, GOODRICH, and McALLISTER, Circuit Judges.

BIGGS, Circuit Judge.

Harry Bowser's widow and administratrix brought suit against the defendant under the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-60, alleging that her husband was killed, as is conceded, when two engines collided on one of the defendant's tracks in its yard at New Castle Junction, Pennsylvania. The complaint alleges, inter alia that the defendant's negligence lay in the failure of Bowser's fellow-servants to stop the train before it passed a red signal referred to hereinafter.*fn1

The facts are as follows. Bowser had been employed by the defendant from July, 1902, until his death on January 17, 1940. He had had more than thirty-seven years of service as a fireman and a locomotive engineer. For some years prior to the accident he had diabetes mellitus. His disease was not sufficiently advanced to require insulin treatments but he maintained a carefully restricted diet with prescribed medication. There was evidence from which the jury could have concluded that he was in a diabetic coma at the time of the accident. This testimony will be discussed at a later point in this opinion.

At the time of the collision Bowser was the engineer of a light freight engine which was engaged in pulling a train of forty freight cars, eastbound out of the yard. A westbound freight train, en route from Connellsville, was entering the yard at the time of the accident. The westbound train was pulled by a heavy type freight engine, operated by one Frizzell, also an experienced engineer. It consisted of one hundred seventeen freight cars. There was a tower operator, one Dover, at a tower designated as the "UN tower", near the west end of the yard. It was Dover's duty to move trains into and out of the yard. Bowser's train came out of the yard on a switch at a cross-over and was to move easterly along the eastbound main track toward a signal known as the "No. 2 Home" signal. When Bower's engine reached a point opposite the UN tower a red signal showed on the tower signal bridge which required Bowser to stop his train short of it and wait for a clearing signal before proceeding. It was about 8:20 P.M. and the winter night was clear. Bowser brought his train to a stop. He blew his whistle for a clearing signal, received it from Dover and moved his train at a speed of from 8 to 10 miles an hour down the track toward the No. 2 Home signal which was about 1100 feet distant to the east.

A few feet short of 428 feet east of the "Home" signal the eastbound main track, on which Bowser's train was proceeding, runs into a switch (which we designate as "No. 1 switch") directed west and connecting the eastbound main track with the westbound main track. Further to the east the eastbound main track runs into another switch (which we designate as "No. 2 switch") and meets a third track known as the "P. & L.E. connection." The freight train operated by Frizzell, proceeding at a slow speed, was on the track last designated. Frizzell's train was to leave the P. & L.E. connection track by the No. 2 switch, proceed for a very short distance along the eastbound main track and then cross by the No. 1 switch to the westbound main track and thence move into the yard. A short distance east of the No. 2 switch was a signal bridge, the signals of which controlled the westbound movements of trains on the P. & L.E. connection, on the eastbound main track and on the westbound main track. These signals were operated by Dover at the UN tower as were switches No. 1 and No. 2. It was Dover's intention to stop Bowser's train at, or just before, the No. 2 Home signal which controlled the eastbound movements on the eastbound main track. To effect this result Dover has set the No. 2 Home signal at red. At or about the same time he set the signals on the signal bridge east of the No. 2 switch and also set switches No. 1 and No. 2 so that Frizzell's train might make the movement hereinbefore described into the yard.

As Frizzell's train moved on the P. & L.E. connection toward the eastbound main track he and his engine crew first saw the headlight on Bowser's engine and heard Bowser's train approaching. Frizzell thought that Bowser's engine was then about 40 to 45 car-lengths away. Frizzell dimmed his headlight two or three times but there was no answering dimming signal from Bowser's engine. Frizzell assumed, as he had the right to do in view of the goahead signal on the signal bridge, that Bowser's train would stop at the Home signal. Frizzell thereupon proceeded west. Bowser's engine, however, did not stop before, at or immediately after the No. 2 Home signal but continued eastward without diminishing its slow but steady speed. Frizzell suddenly realized that Bowser was not going to stop. The two engines were then not more than 5 car-lengths apart. Frizzell threw his engine's brakes in emergency and stopped his train within 10 feet. Bowser's train moved on and his engine ran into Frizzell's engine at a point just east of switch No. 1, at a point 428 feet east of No. 2 Home signal. Apparently the front drivers of Frizzell's engine were already a few feet over on the switch tracks when he stopped it. Bowser's lighter engine rode up upon Frizzell's heavier one, cracking the boiler of the lighter locomotive. Live steam escaped. As soon as possible rescuers entered the cabin of Bowser's engine. Bowser, his fireman Kunkle, and his "front" brakeman Welty, were found to be dead.

Bowser's body was discovered in a sitting position on his seat box on the right side of the engine, his head slumped down on his chest. His right arm was hanging out the window. Fireman Kunkle's body was found on the deck of the engine facing west (toward the tender), crushed by the wooden end-sill which had served as a buffer between the tank and the engine. The tank had moved up over the tender apron and, lying across Kunkle's lap, had pinned him to the deck of the engine. There was no evidence that Kunkle was engaged in firing the engine at the time of the collision. Brakeman Welty's body was found on the forward seat on the left side of the cab, next to the boiler. The seat had been pushed up against the boiler head. Kunkle's seat was just behind that of the brakeman.

Just before the accident and when Bower's engine was about two car-lengths west of the Home signal, Dover realized that something was wrong and that Bowser was not going to stop at a point at or before the Home signal. He immediately sounded the signal-tower siren and when Bowser's engine did not stop he rushed out onto the steps of the tower and swung a red lantern in the "swing-down" position in an effort to stop the train. Bowser's flagman, White, who was riding in the caboose, saw Dover swing the lantern down and was actually reaching for the angle-cock on the rear of the caboose to break the air and apply the brakes in emergency when the collision occurred.

There was evidence to the effect that Bowser's train could have been stopped by the use of brakes in emergency within a very short distance. The testimony suggests 20 or 30 feet. We will employ the figure of 20 feet in determining the questions presented by this appeal. There was no proof of defective equipment of any of the units comprising Bowser's train and there is no suggestion that the equipment along the right-of-way, for example, the Home signal, did not function properly.

There is no evidence that Frizzell or any member of his crew, or that Dover or flagman White of Bowser's train were negligent. If there was negligence in the occurrence of this very unusual accident it lies in Bowser's own failure to act, or in the failure of Kunkle or Welty to act in time to avoid the accident. If Bowser was guilty only of contributory negligence, such negligence would be pertinent only to the issue of mitigation of damages pursuant to the provisions of 45 U.S.C.A. § 53. Cf. Davis v. Kennedy, 266 U.S. 147, 45 S. Ct. 33, 69 L. Ed. 212, and Frese v. Chicago, B. & Q.R. Co., 263 U.S. 1, 44 S. Ct. 1, 68 L. Ed. 131. It is conceded by the defendant that it was the duty of Kunkle and Welty to have observed all signals, such as the Home signal, and to have called them as soon as seen to Bowser, precisely as it was Bowser's duty to have called signals to Kunkle and Welty. It was the duty of that member of the engine crew who first saw the Home signal to have called it immediately and it was the duty of the other members of the crew in the engine immediately to answer the call. The defendant concedes also that if the engineer of a train is incapacitated or disabled it is the duty of the fireman immediately to stop the train and that if a locomotive passes a stop signal, the fireman at once must take the necessary steps to halt the train.The foregoing concessions are based on the operating rules of the defendant.

At the close of the plaintiff's case the defendant moved for a dismissal of the action, inter alia, upon the ground that the plaintiff had not proved that the defendant or any of its agents had been negligent. The court below granted the motion and gave judgment for the defendant.*fn2 The inferences to be drawn from the evidence therefore must be those most favorable to the plaintiff. In our opinion the plaintiff is entitled to the inference that Kunkle either knew or should have known that the Home signal was red or that Bowser was in a state of inattention and did not see the signal. Our reasons are as follows. There was substantial evidence from which the jury could have found that Kunkle and Welty could have seen the Home signal when their engine proceeded on the angle formed by the cross-over from the west-bound main track to the eastbound main track in front of the UN tower. The signal was at red when Bowser's train moved past the UN tower.*fn3 Bowser of course could have seen the signal. It follows that Bowser first saw that the Home signal was at red and called it, that Kunkle or Welty saw it first and called it, or that no one saw the signal and that no one called it. If Bowser did not call it or answer Kunkle or Welty's call, Kunkle or Welty should have known that Bowser was in a state of inattention and immediately should have ascertained the reason for Bowser's inattention. If no one called the signal Kunkle or Welty were negligent. The inference is inescapable that of Kunkle and Welty, Kunkle at least should have known the status of the Home signal. Kunkle was an experienced railroad man accustomed to this particular run who knew as well as Bowser did that the Home signal governed the movement of his train. Moreover, the headlight of Frizzell's engine was clearly visible when Bowser's engine proceeded on the cross-over in front of the UN tower. Indeed at about this time Frizzell was dimming the headlight of his engine as a signal to Bowser. The situation was a critical one. Junkle reasonably may be charged with knowledge of all pertinent circumstances.

A great deal of the evidence is the court below was devoted to proof that Bowser had diabetes and that he had fallen into a diabetic coma during the short interval which elapsed while his engine covered the 1076 feet between the point where he drove his engine past the UN tower and the point where it passed the Home signal. This interval lasted about 91 seconds.It was no less than 80 seconds if we assume, as we should, that Bowser would have stopped his engine at least 100 feet short of the signal so he could observe it color. Bowser was certainly conscious and able to act when he blew to get his clearing signal from Dover in the UN tower. He was surely not in the possession of his faculties at the moment when his engine reached the spot at which he should have stopped it before the Home signal.

An autopsy was performed upon Bowser's body. Dr. Bruecken, the expert pathologist who performed the autopsy, stated that in his opinion Bowser was in a diabetic coma at the time of the occurrence of the accident from which in all probability he would have recovered if he had received prompt medical treatment. It was impossible for the pathologist to test the dead man's blood for sugar content for his body had been embalmed. From an examination of the pancreas, which contained large lesions, Dr. Bruecken gave as the cause of Bowser's death, "Diabetic coma with Accidental Scalding."*fn4 The physician also based his diagnosis on the fact that the dead man's stomach was "considerably distended" and "filled with a large amount of soft material only partly digested * * *." Some of this material consisted of carbohydrates, notoriously deleterious to the health of persons suffering from diabetes mellitus. It should also be pointed out that a specimen of Bowser's urine, left at his home the morning preceding the day of the accident, and examined and tested by his daughter, a registered nurse, in accordance with her customary technique, showed an absence of sugar. Bowser may have been negligent in breaking his dietary regimen but proof was not offered on this issue. In the light of all of the plaintiff's testimony tending to show that Bowser was in a diabetic coma or at least in a state of inattention caused by his disease, we think that the jury would have been entitled to infer that he was incapable of stopping his engine at the critical moment. The evidence on which the defendant relies looks the other way but the issue presented was preeminently one for the jury.

If the jury had resolved this question in the plaintiff's favor, another issue would have required determination. This may be stated as follows: Was Junkle or Welty or either of them negligent in not stopping the engine of their train when it moved past the point where Bowser should have stopped it? The Home signal was 428 feet distant from the point where the collision occurred. The jury would have been justified in finding that Bowser's engine was moving at the rate of 8 miles an hour and that Kunkle, at least, should have been aware that the Home signal was red and Bowser had passed it. The jury could have found that Bowser's train could have been stopped within 20 feet. Without reference to the customary practice among train operators to stop a train some distance before a signal in order to observe it Bowser's engine had 428 feet less 20 feet (the distance required for stopping it) to go from the Home signal before it reached the point of the collision. Call this 400 feet and translate it into time (assuming a speed of 8 miles an hour for Bowser's train), and the inference follows that Kunkle had about 34 seconds to move from his position in the second seat on the left of the engine cabin and across its deck and into Bowser's side of the cabin, throwing the engine's throttle into neutral and applying its brakes in emergency. The last two operations should not have taken more than 10 seconds. Kunkle therefore had at least 24 seconds to move from his place on the left side of the cabin and into Bowser's side and to a position from which he would have been able to do the acts necessary to bring the train to a stop. The distance which he would have had to cover was not more than 20 feet.

It may be urged of course that neither Kunkle nor Welty was aware of the arrival of their engine at the Home signal and that therefore neither would have had reason to know that they and Bowser were in a position of imminent danger. This contention may be supported as to Welty who, as we have stated, was a new man on the run. But Kunkle, as we have stated repeatedly, was an experienced fireman who had worked with Bowser on numerous occasions and who was thoroughly familiar with the New Castle Yard and its tracks and signals.*fn5 For this reason we think that Kunkle should have known when Bowser's engine passed the Home signal. At the very least it would be permissible to permit the jury to draw such an inference under the circumstances.

Whether or not Kunkle or Welty were negligent either because they failed to observe the danger or failed to act was a question for the jury. The decision in Jenkins v. Kurn, 313 U.S. 256, 61 S. Ct. 934, 85 L. Ed. 1316, supplies an analogy. See also Missouri Pac. R. Co. v. Jones, 124 Tex. 234, 76 S.W.2d 1044, certiorari denied 294 U.S. 729, 55 S. Ct. 638, 79 L. Ed. 1259; Louisville & N.R. Co. v. Grizzard, 238 Ala. 49, 189 So. 203, certiorari denied 308 U.S. 603, 60 S. Ct. 140, 84 L. Ed. 504; and Fisher v. Chicago, R.I. & P.R. Co., 290 Ill. 49, 124 N.E. 831. At the new trial interrogatories submitted to the jury might be employed to clarify the issues of negligence and of Bowser's possible contributory negligence.

The judgment is reversed and a new ...

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