HUTCHINSON v. NORFOLK & W. RY. CO., 171 F. 410

BOYD, District Judge (after stating the facts as above). The action of the Circuit Court in sustaining the demurrer to the evidence was in effect to direct a verdict for defendant, or in other words, to hold that taking the testimony in support of plaintiff’s declaration to be true, together with all reasonable inferences to be drawn therefrom, it was not sufficient in law to establish plaintiff’s contention. We see nothing in the evidence upon which a jury would be warranted in finding that the defendant was negligent.

There was nothing unusual in the operation of the train on the occasion of the accident; but, on the other hand, the spur track, or “switch,” as it was called, was being used by the defendant in the ordinary manner and' for the purpose for which it was constructed and maintained. The intestate had ample notice of the presence of the train on the main line and the intention of the operators thereof to run in and upon the switch with empty cars to be left for the use of the coal company.

When the train stopped upon its arrival and notified intestate and Green that the empty cars were to be placed upon the switch, they picked up the tools with which they were at work, left the track clear until the first three empty cars were moved in, then without making any inquiry or investigation whatever, to ascertain if the train was coming upon the switch again, Dr even looking' to see if the train had departed, and in face of the fact, as stated by Green, that the train was still “switching around” on the main line, they went back onto the track, and intestate sat down within six feet of the end of the rear car which had been moved in, with his back toward the car, in which situation he could not see the train moving, nor could those operating the train see him, and this action on his part was immediately after the placing of the first three cars on the switch.

We think that intestate not only failed to use the care and precaution under the circumstances which prudence would have dictated, but that his conduct was careless to a degree bordering on heedlessness. This in our opinion was the sole cause of his death. As we have stated, intestate went back upon the track and practically concealed himself from the operators of the train without any notice whatever to them that he was there.

He did not know the number of empty cars that were to be placed upon the switch, and it was therefore his duty to wait at least a reasonable time in a place of safety and find out if more cars were to come in, especially in view of the fact that, as testified by Green, the train was still engaged in switching on the main line. If intestate had used his senses of sight and hearing, he could have known what was going on.

The action of both Green and intestate is probably explained by Green’s testimony, in which he says, “We thought the train had gone.” It was not enough, however, to merely think, nor to act upon the thought; but the further duty devolved upon intestate under conditions o E apparent danger to look and see, and if he had done this he would have discovered that the train was still there, was in motion, and was proceeding to use the switch again. We conclude therefore that there was no error in the judgment of the Circuit Court sustaining defendant’s demurrer to the evidence, and the judgment is therefore affirmed.

Affirmed.