On plaintiff's appeal from the Supreme Court.
For the appellant, Irving Siegler.
For the respondent, George S. Hobart and Ralph E. Cooper.
The opinion of the court was delivered by
PARKER, J. The appeal is from a judgment of nonsuit in an action of negligence based on the Federal Employers' Liability act. The plaintiff's decedent, Ira F. Pellington, was a conductor on a regular train carrying no passengers, which on January 7th, 1932, after dark, arrived in the defendant's terminal yard at Jersey City, and came to a stop before reaching the station platforms. His duty then was to go to the administration office to make a report, and to do this it was necessary to walk ahead of his standing train into the station. As the jury could properly say, he was on his way thither when struck and killed, his body being badly mangled, by another train which was arriving on the track south of that on which his own train stood.
Interstate commerce was admitted. The question was whether plaintiff had made out a case for the jury of negligence by the defendant within the purview of the act and the scope of the complaint.
There were five separate charges of negligence, but at the trial they simmered down to two, which were, 1, failure of the operators of the second train to give the station whistle required by the defendant's rules. This may be dismissed with the double comment that it was not charged in the complaint, and that if charged, the only rule relied on related to stations on the line, and not to terminals.
2. The other alleged act of negligence relied on was violation of rule 17, which reads, in part, as follows: "The headlight will be displayed to the front of every train by night. It must be concealed or extinguished when a train turns out to meet another and has stopped clear of main track, or is standing to meet a train at end of two or more tracks or a junction. It must be dimmed while passing through yards where yard engines are employed; approaching stations at which stops are to be made or where trains are receiving or discharging passengers; approaching train order signals, junctions, terminals or meeting points, or while standing on main track at meeting points and on two or more tracks when approaching trains in the opposite direction."
The pertinent words of this rule appear to be: "It must be dimmed while passing through yards where yard engines are employed." Assuming for present purposes that the rule contemplates not only protection to the operation of the yard engines and cars attached, but incidental protection to trainmen unconnected with yard engines, and either walking on tracks or so near them as to be within the overhang of a passing train, the question then arises whether in this case there was any testimony legally and reasonably evidential to indicate that the rule had been violated in disregard of a duty to deceased. All that the case shows is certain testimony of the witness Durr, a former employe of the defendant, who was on decedent's train as a brakeman, and who testified that he saw deceased walking ahead of the train. Durr was going to the rear of the train "to get the markers off the hind end of the car." This was two hundred and fifty to three hundred feet west of the signal bridge. Pellington's body was found east of that bridge, some forty feet or so, the exact
distance not being material. Durr testified on direct that (from his place at or near the rear of his own train) he saw another train coming in, about west of the Grove street signal station: which would be something like a third of a mile away as shown on the map used at the trial. He did not know what train it was, but saw the bright light, and near Henderson street (four hundred feet east of Grove street) he saw it go dim. The examination continued as follows:
"Q. Did you observe anything else? A. I looked the second time and it appeared the light was out. I don't know whether it was or not, but it was ...