CHESAPEAKE & O. RY. CO. v. KERNS

CHESAPEAKE & O. RY. CO. v. KERNS. (Circuit Court of Appeals, Sixth Circuit. May 5, 1926.) No. 4541. Master and servant <§=3 139 — Failure to notify car repairer of movement of other cars held not actionable, where repairer was injured by fail on becoming alarmed, though not in danger. Railroad car foreman’s failure to notify car repairer, working under car on repair track, of intended movement of cars on another part of such track, held not actionable negligence, where repairer was never in any danger, and foreman was not required to anticipate that he would be injured by falling against wheel of ear in attempting to get from under it, on becoming alarmed. In Error to the District Court of the United States for the Western Division of the Southern District of Ohio; Smith Hiekenlooper, Judge. Action by Lon M. Kerns against the Chesapeake & Ohio Railway Company. Judgment for plaintiff, and defendant brings error. Reversed. F. M. Tracy, of Cincinnati, Ohio (Galvin & Tracy, of Cincinnati, Ohio, on the brief), for plaintiff in error. Wm. E. Marsteller, of Cleveland, Ohio (D. P. Anderson, of Youngstown, Ohio, on the brief), for defendant in error. Before DENISON, 'DONAHUE, and MOORMAN, Circuit Judges. [MAJORITY — MOORMAN, Circuit Judge.] MOORMAN, Circuit Judge. The defendant in error, Kerns, was employed by the Chesapeake & Ohio Railway Company at St. Albans, W. Va., as a car repairer. While so engaged on September 12,1923, he was injured in attempting to get out from under a car on which he had been working. He sued the railway company and recovered damages. The question before us is whether the District Court should have directed a verdict for the defendant. Kerns was working on a track used exclusively for the repair of ears. It was intersected by a street 52 feet wide, known as Fifth avenue. On the occasion in question it was occupied to its full capacity, after allowing for proper spacing between the cars to permit the men to work. At the northern end, which was the service end, there was a blue flag, indicating that men were at work on the track. There was also an open derail, which made it impossible for a locomotive or car to enter upon the track. Between the blue flag and Fifth avenue there were seven cars, six of which were coupled together, the other being 9 feet from the car nearest to it. These ears .had been repaired. South of Fifth avenue there were seven ears, each separated 9 or 10 feet from the one nearest to it. The repairs on the two nearest to Fifth avenue had been completed. The next car was off its trucks and supported by jacks. Two men were working on it. No one was working on the fourth ear from the avenue, but on the fifth Kerns and a man named Harris were working. One man was working on the sixth, and twó other workmen were engaged on the seventh. It became the duty of the yardpiaster and the ear foreman to remove from the track the nine ears that had been repaired. The yardmaster was in charge of the movement, and the ear foreman in eharge of the cars. After unlocking the switch, removing the blue flag, and closing the derail, the two walked south to Fifth avenue. The foreman went to the rear of the ninth car and called out to the men further south, in an attempt to notify them of the intended movement. The engine coupled to the ears in the ordinary way. Before coupling to the ninth ear, which was next to the car on jacks, the foreman chocked its wheels, so that it could not collide with any of the ears south of it. There was no possibility of any of them being moved, and the men working about them were never in danger. Kerns said that he heard ears bumping together, looked north, saw moving wheels on the track, became alarmed, and, in attempting to get out from under the car on which he was working, slipped and fell against the wheel, and was injured. It is admitted that plaintiff was never in danger from the movement of the cars. The question is whether the failure to notify him of the intended use of a part of the track— assuming that it was customary to give such notice — was actionable negligence, even though the giving of it would have accomplished nothing except to prevent his alarm. One is required to anticipate only the probable results of his wrongful act. According to plaintiff’s contention, the foreman ought to have anticipated, as a result of his failure to notify plaintiff of the intended movement, that the latter would not only, become alarmed, but would also, in seeking a place o£ safety, receive an injury in an unusual manner. In our view of tbe law, it would be extending tbe rule of proximate cause beyond its reasonable scope to hold that the foreman was required to anticipate this second improbable contingency. Judgment reversed.