Excerpt from Pennsylvania R.R. Co. v. Chamberlain [don't read till instructed]

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Excerpt from
PENNSYLVANIA RAILROAD CO. v. CHAMBERLAIN
288 U.S. 333 (1933)

This is an action brought by respondent against petitioner to recover for the death of a brakeman [Chamberlain], alleged to have been caused by petitioner's [Railroad's] negligence.  The complaint alleges that the decades, at the time of the accident resulting in his death, was assisting in the yard work of breaking up and making up trains and in the classifying and assorting of cars operation in interstate commerce; that in pursuance of such work, while riding a cut of cars, other cars ridden by fellow employees were negligently caused to be brought into violent contact with those upon which deceased was riding, with the result that he was thrown therefrom to the railroad track and run over by a car or cars, inflicting injuries from which he died.  [I.e. plaintiff's theory is that railroad employees negligently caused the string of cars the deceased was riding to collide with the string of nine cars following, thus throwing him under the train.] * * *

That part of the yard in which the accident occurred contained a lead track and a large number of switching tracks branching therefrom.  The lead track crossed a 'hump,' and the work of car distribution consisted of pushing a train of cars by means of a locomotive to the top of the 'hump,' and then allowing the cars, in separate strings, to descend by gravity, under the control of hand brakes, to their respective destinations in the various branch tracks.  Deceased had charge of a string of two gondola cars, which he was piloting to track 14.  Immediately ahead of him was a string of seven cars, and behind him a string of nine cars, both also destined for track 14.  Soon after the cars ridden by deceased had passed to track 14, his body was found on that track some distance beyond the switch.  He had evidently fallen onto the track and been run over by a car or cars.

The case for respondent rests wholly upon the claim that the fall of deceased was caused by a violent collision of the string of nine cars with the string ridden by deceased.  Three employees, riding the nine-car string, testified positively that no such collision occurred.  They were corroborated by every other employee in a position to see, all testifying that there was no contact between the nine-car string and that of the deceased.  The testimony of these witnesses, if believed, establishes beyond doubt that there was no collision between these two strings of cars, and that the nine-car string contributed in no way to the accident.  The only witness who testified for the respondent was one Bainbridge; and it is upon his testimony alone that respondent's right to recover is sought to be upheld.  His testimony is concisely stated, in its most favorable light for respondent, in the prevailing opinion below by Judge Learned Hand, as follows:

"The plaintiff's only witness to the event, one Bainbridge, then employed by the road, stood close to the yardmaster's office, near the 'hump.'  He professed to have paid little attention to what went on, but he did see the deceased riding at the rear of his cars, whose speed when they passed him he took to be about eight or ten miles.  Shortly thereafter a second string passed which was shunted into another track and this was followed by the nine, which, according to the plaintiff's theory, collided with the deceased's.  After the nine cars had passed at a somewhat greater speed than the deceased's, Bainbridge paid no more attention to either string for a while, but looked again when the deceased, who was still standing in his place, had opposed the switch and onto the assorting track where he was bound.  At that time his speed had been checked to about three miles, but the speed of the following nine cars had increased.  They were just passing the switch, about four or five cars behind the deceased.  Bainbridge looked away again and soon heard what he described as a 'loud crash,' not however an unusual event in the switching yard.  Apparently this did not cause him at once to turn, but he did so shortly thereafter, and saw the two strings together, still moving, and the deceased no longer in sight.  Later still his attention was attracted by shouts and he went to the spot and saw the deceased between the rails.  Until he left to go to the accident, he had stood fifty feed to the north of the track where the accident happened, and about nine hundred feet from where the body was found."