112 F. 888 (6th Cir. 1902), 982, Choctaw, O. & G.R. Co. v. McDade

Docket Nº:982.
Citation:112 F. 888
Party Name:CHOCTAW, O. & G.R. CO. v. McDADE et al.
Case Date:January 07, 1902
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 888

112 F. 888 (6th Cir. 1902)

CHOCTAW, O. & G.R. CO.

v.

McDADE et al.

No. 982.

United States Court of Appeals, Sixth Circuit.

January 7, 1902

E. E. Wright, for plaintiff in error.

G. T. Fitzhugh, for defendants in error.

Page 889

This is an action by the widow and children of John I. McDade to recover damages for his negligent death while in the service of the plaintiff in error. There was a judgment for the plaintiffs, and the defendant has sued out this writ of error. The deceased was killed at or near Goodwin station, Ark., between 12 and 1 o'clock on the night of August 18, 1900. He was at the time in the discharge of his duty as head brakeman on top of a furniture car some 8 or 10 cars back of the engine, in a train consisting of 27 freight cars. The crew of the train consisted of the engineer, fireman, two brakemen, and the conductor. The train was west-bound. On approaching Goodwin, the engineer, when from a quarter to one-half mile east, blew for the station. The conductor, who was in the cupola of the caboose, gave with his lantern the signal to pass Goodwin without stopping. This signal was passed by the rear brakeman, then on a car about three cars ahead of the caboose, to the head brakeman, McDade, and by the latter was repeated to the engineer, who answered with a short blast. The train, in consequence, did not check, but passed Goodwin at a speed of probably 20 miles an hour. When the train reached Brinkley, 9 miles west, McDade was missed. His lantern was found on top of the car where he had last been seen, still burning, and seated in a place provided for it near the grab irons on the north side and west end of the top of the car, and within reach of the place from which the 'go-ahead signal' had been repeated by the deceased. McDade's body was subsequently found on the ground, on the north side of the track, 675 feet west of the water tank at Goodwin. The evidence tended to show that it was the duty of brakemen to be on top of the trains as they were approaching and passing stations, and that it was the duty of the head brakeman to watch for signals from the rear brakeman, and to repeat them to the engineer. There was evidence tending to show that, when McDade repeated the go-ahead signal on approaching Goodwin, he was seated on the top and right hand side of a furniture car, somewhat higher than the average freight car, and that he signaled the engineer over the right-hand side of the top of the train, by the proper movement of his lantern. His distance back from the engine and the engineer's position in the cab made it necessary that the signal should be repeated over the side of the car, just as this was. The evidence also tended to show that McDade, in being where he was when he repeated this signal, was just where his duty required him to be, both for observing and giving signals. There was at Goodwin, on the north side of the track, a water tank, with usual swinging spout for lowering and connecting with the tank of the engine. The contention of the defendants in error was that McDade was hit by this spout when passing the tank at Goodwin, and that he was rendered unconscious or dazed, and fell off the train at or near the point where his body was found, 675 feet west of this tank spout. In support of this conclusion there was evidence tending to show that this spout did not hang vertically, in reference to the tank, when not in use, but that it was constructed so close to the track, and swung at such an angle toward the track, as to endanger the lives of employes upon the top of passing cars. There was also evidence tending to show that there was no reason of necessity or convenience for so constructing or maintaining this spout, and that customarily they were so swung or suspended as to clear all trains, and all persons whose duty required them to be on the roofs of passing cars. There was also evidence tending to show that the deceased had received a violent blow from some blunt object on the left side of his head and face, and that this would be the side exposed to a collision with this spout if he remained in the position he was in when he was observed to give the go-ahead signal, just before passing this spout. There was also evidence of injuries to other

Page 890

parts of his head and body, likely to have resulted from a fall from the top of a train rapidly moving. There was evidence tending to show that the car from which McDade fell was a furniture car, and that it was both higher and wider than the average freight car. There was also evidence that such cars were frequently received into the trains of the plaintiff in error and of other companies. McDade was an experienced brakeman, though he had been in the service of the plaintiff in error but a short time, and had not been over the division including Goodwin more than 8 or 10 times, equally divided between day and night trips.

Before LURTON, Circuit Judge, and WANTY, District Judge.

LURTON, Circuit Judge, after making the foregoing statement of the case, .

1. The whole case of the plaintiff below was founded upon the theory that the deceased had been killed by coming into collision with an overhanging water spout at the Goodwin tank. The case was put to the jury by the trial judge alone upon this theory, for the jury were told that 'if he was not struck by the water spout, or the chain depending from it, in such a way as to cause his fall from the car, your verdict should be for the defendant company. ' While it cannot be said the evidence demonstrates that the deceased was caused to fall from his post by reason of a collision with the water spout at Goodwin, yet...

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