Thomas v. Central Railroad
Thomas v. Central Railroad
Opinion of the Court
Opinion by
It is admitted"that the defendant’s employee, the flagman at the place of the accident, gave a signal to stop, and this being acted on by the engineer of the coal train produced the break up of the train and the piling up of the cars on the adjacent track. It is argued for appellant that the parting of the coal train is not proved, but only a matter of inference. There was, however, evidence for the jury that the train had parted. The conductor of the coal train testified that the cause of the cars piling up was “ the tail end of the train running into us ... . the train was parted.” But this was not a controlling circumstance. The signal given was to stop, and the jury, under explicit instructions from the judge, guarding most carefully the rights of defendant, have found that it was given to the front of the train, that is, to the engineer. Whether the flagman should have given the signal for a parted train, or had no occasion to” give any signal at all, is not important. The signal he did give was to stop the train; no explanation was made why he gave it, nothing appears in the evidence to justify it; the engineer obeyed it, the jury have found that in so doing he was following his duty in the usual course of the business; and as a consequence the collision occurred.
It is further argued that, even admitting that the signal by
It is further argued that the negligence of the Reading Railroad Company in making up this train of empty cars, if not the proximate, was at least a concurrent cause of the accident, and the court erred in excluding evidence of a settlement and release by the plaintiff of the joint tort feasor. But there was no evidence that the Reading Company was negligent. It is true that the testimony shows a long train of fifty-four empty coal cars, of different sizes and patterns, some of a type not now used, and it is a matter perhaps of fair inference that the danger of the train parting was greater than at the present time when all or most of the cars are equipped with automatic couplers of a standard height. But there was no evidence that the train was not made up in the manner usual at that time, and the testimony of the engineer tends to show that parting of long trains was one of the ordinary risks of the business against which he was constantly required to guard. The evi
Lastly, it is urged by appellant that the negligence relied upon for recovery, i. e., the giving of a wrong signal, is not the negligence declared on, which is averred to be “in causing and permitting” an obstruction to be and remain upon the tracks; in failing to notify the decedent in time; and in not keeping the track in a safe and passable condition. It is conceded that, after the piling up of the coal cars and their fall on the adjoining track, no diligence could have notified the,decedent’s train in time to prevent the accident, and if the case depended on negligence in permitting an obstruction, getting there without fault of defendant, to remain until the collision, the plaintiff’s case would fail. But the declaration is upon negligence in “ causing ” the obstruction to be upon the track, as well as in allowing it to remain there, and whether the negligence proved, in giving a wrong signal, “ caused ” the obstruction was a question of proximate cause for the jury as already discussed. There was no variance which can be held substantial after the verdict.
Judgment affirmed.
Reference
- Full Case Name
- Elizabeth Thomas, of the last will and testament of William H. Thomas v. Central Railroad Company of New Jersey
- Cited By
- 34 cases
- Status
- Published
- Syllabus
- Negligence — Proximate and remote cause. The test of proximate cause is whether the facts constitute a continuous succession of events so linked together that they become a natural whole, or whether the chain of events is so broken that they become independent, and the final result cannot be said to be the natural and probable consequence of the primary cause. Negligence — Railroads—■Flagman—Proximate cause — Improper signal— Parting of freight tram. In an action to recover damages for the death of a locomotive engineer, against a railroad company which owned the tracks upon which the deceased was running a train for another company by which he was employed, it appeared that, shortly before the deceased’s train came to the place of the accident, a flagman employed by the defendant company gave a signal to stop a long train of empty freight cars, and that by reason of this signal, the purpose of which was not explained, the engineer of Ihe coal train slopped, and the rear end of the train which had parted piled up upon the cars ahead, throwing them upon the adjacent track, and leading to a collision in which the deceased was killed. Held, that the question whether or not the signal was negligently given by the flagman, and whether or not it was the proximate cause of the accident, were questions for the jury. Neglige nee — Railroads. A railroad company cannot be charged with negligence in making up a long train of empty freight cars so that they parted and caused acollision, where there is no evidence that the train was not made up in the manner usual at that time, and the testimony of an engineer tends to show that the parting of long trains was one of the ordinary risks of the business against which ho was constantly required to guard. Tort — Release from liability. f A tort feasor is not released from liability by a settlement between the injured party and one not shown to be liable. Negligence — Pleading—Allegata and probata. In a negligence ease against a railroad company where the statement alleges negligence in causing an obstruction to be upon the track, as well as allowing it to remain there, and the proof is that the obstruction was caused by a negligent signal, but there is no proof of negligence in permitting the obstruction to remain until the accident, there is no variance which can be held substantial after a verdict for the plaintiff.