Freed v. Erie Lackawanna Railway,

445 F.2d 619, cert. denied, 404 U.S. 1017 (1971)


Freed (P) was struck by an Erie (D) train. P was the head brakeman on a freight train, and the accident occurred in the North Randall switching area. P and a fireman were had just dropped off their train and had started walking down a right of way adjacent to a side track when P was struck by a caboose. Second's before the accident, P's attention was diverted by the fireman who had turned and called to the engineer of the freight train to throw him is cigarettes. During deliberation, the jury submitted a question to the trial court asking if the switch train was within the yard limits at the time of the accident. The court declined to answer in that it involved a question of fact. The verdict went to D and P appealed.