Before SPARKS, MAJOR, and MINTON, Circuit Judges.
This case involves the correctness of the District Court's action in directing the jury to return a verdict for the defendant in a suit for the wrongful death of the plaintiff's decedent. From this verdict and judgment the plaintiff has appealed.
The complaint charges the defendant with negligence in violation of the Federal Employers' Liability Act*fn1 whereby the plaintiff's decedent was killed. The decedent, who was fifty-three years old, had been employed by the defendant since 1913. For several years he had been hard of hearing.
There is no conflict in the evidence. Only the widow and two fellow employees of the decedent testified. The widow's testimony throws no light upon the problem before us. The witness Galaikis, who was examined through an interpreter, had been working for the defendant as a section hand since 1929. The decedent was his foreman. The witness Plitsis was also a section hand and had been working for the defendant since 1941, under the decedent as his foreman. From these witnesses, aided by a plat of the locale introduced by the plaintiff, the following facts are undisputed in the evidence.
On November 22, 1944, which was a beautiful, clear day, the decedent was working with his gang in the Youngstown, Ohio, yards of the defendant. The tracks in the yard at the point where the decedent and his men were working ran in a general east and west direction. In the east end of the yard, just south of the tracks, was the yard office. About eighteen hundred feet west of the yard office and on the south side of the tracks was a toolhouse. As the witnesses, aided by the plat, described the locale, from the north to the south there were first two tracks of the New York Central, with which we are not concerned. Next came the tracks of the defendant, first the westbound main and then the eastbound main, and next the track we are primarily concerned with, which up to a point called the "crossover" was referred to as the "old main" and beyond the crossover was referred to as "#1 Lead." The crossover effected a switch from the old main to the east and westbound mains. To make this crossover, there was a part of the track referred to as the "frog." The decedent and his gang were raising the track at the frog. South of the old main #1 Lead, which we shall hereafter refer to as "No. 1" and west of the crossover were tracks Nos. 2, 3, and 4.
At 12:10 p.m., the decedent and his men left their place of work to go to lunch, which they had left in the toolhouse. About that time a regular local freight train of the defendant came in on No. 1 track from the east, and the engine stopped about where the decedent and his men had been working. This was the only engine in the yard when the men left for lunch. The decedent and his men walked west towards the toolhouse, pushing their pushcar on track No. 4. When they reached a point approximately two hundred feet west of where the engine was standing, the decedent turned to his right and walked north from track No. 4 across tracks No. 3 and No. 2.
The court questioned the witness Plitsis, the only witness to testify as to the decedent's actions at this point, as follows:
"Court: How far did you see him? Did you see him as far as No. 1, or part way across, or how far did you observe him?"
"Witness: Right to the No. 1 I saw him the last time."
There were some box cars standing on tracks No. 2 and No. 3. Those on track No. 2 Extended "300 feet from the lead where the train was standing." In which direction does not appear. The men walked on down track No. 4 to the toolhouse, took the pushcar off the track, and went into the toolhouse to eat lunch. One end of the toolhouse was used by the section men and the other end by the trainmen, but who used which end does not appear. As the day was pleasant, the section men left the door open while eating their lunch.
Plitsis testified that it took him about ten minutes to eat lunch. He testified that while eating lunch, the men were talking together and interested in their meal. He heard no trains moving or bells or whistles sounding. The men were accustomed to trains moving and bells and whistles sounding. There is no evidence that Plitsis or any of the other men paid any attention to train movements or signals while eating their lunch. After he finished lunch, Plitsis went to look for his foreman. When he was about a hundred feet from the toolhouse, he saw the decedent's body lying between the rails of track No. 1. The body was approximately six hundred feet from the toolhouse. The decedent was lying on his back facing the east, his right wrist on the rail and his right hand severed. The only other injury noticed was to the back of his neck. About thirty minutes had elapsed from the time the decedent had left his men until he was found dead. At the time he was found, there was no train in the yard. The body was found about seven hundred feet west of the point where he had last been seen. How he traveled that seven hundred feet, whether by foot or on a moving train, oes not appear.
No one saw the accident. There is no evidence as to how the decedent met his death, except that he was run over by one of the defendant's trains, presumably by the train that was standing on track No. 1 a few minutes before.There was no evidence establishing at what point along the track the decedent was first hit, whether he was dragged any distance, or whether the engine or all the cars or only a part of the cars passed over him. All we have is the dead employee of the defendant, run over by one of the defendant's trains. No evidence as to which one, where, or how.
The plaintiff contends that the evidence shows the defendant was negligent in not maintaining a lookout and not giving a signal of warning. There is no evidence or reasonable inference to be drawn from any evidence that no lookout was maintained or no signal given. As a general proposition, at that position in the yard there was no duty on the defendant to keep a lookout or give signals. Toledo, St. Louis & Western R. Co. v. Allen, 276 U.S. 165, 170, 171 48 S. Ct. 215, 72 L. Ed. 513; Aerkfetz v. Humphreys, 145 U.S. 418, 420, 12 S. Ct. 835, 36 L. Ed. 758; Sumney v. Southern R. Co. et al., 4 Cir., 89 F.2d 437, 439. Furthermore, the decedent was not placed in any position by any evidence in this case which would show that a lookout would have discovered him and a signal would have warned him, because the lookout would have had to be on the engine, and we do not know from any evidence or any reasonable inference therefrom that the decedent was in front of the engine and that the engine passed over the body. The decedent might have been on the track in front of ...