Fort Street Union Depot Co. v. Hillen

• Decision Date: 16 April 1941
• Docket Number: No. 8726.,8726.
• Citation: 119 F.2d 307
• Parties: FORT STREET UNION DEPOT CO. v. HILLEN.
• Court: U.S. Court of Appeals — Sixth Circuit

119 F.2d 307 (1941)

FORT STREET UNION DEPOT CO. v. HILLEN.

No. 8726.

Circuit Court of Appeals, Sixth Circuit.

April 16, 1941.

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John C. Shields, of Detroit, Mich. (Seward L. Merriam, John C. Shields, and Wm. R. Althans, all of Detroit, Mich., on the brief), for appellant.

Ernest A. Michel, of Minneapolis, Minn. (Davis, Michel, Yaeger & McGinley, Tom Davis, and Ernest A. Michel, all of Minneapolis, Minn., and Emerson H. Schink, of Detroit, Mich., on the brief), for appellee.

Before HICKS, ALLEN, and MARTIN, Circuit Judges.

ALLEN, Circuit Judge.

This appeal is taken from a judgment rendered on a verdict in favor of the appellee, who brought an action under the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq., to recover damages for the death of her husband, Samuel Hillen, who was injured while working as a switchman in appellant's terminal railroad yards at the Fort Street Union Depot in Detroit, Michigan. Liability was asserted to arise out of the alleged violation by appellant of Sections 4 and 8, Title 45 U.S.C., 45 U.S.C. A. §§ 4, 8, (the Federal Safety Appliance Act), which require all cars used by any railroad engaged in interstate commerce to be provided with secure grabirons or hand-holds. Appellant contends that inadmissible testimony was received in evidence; that the court erred in not granting its motion for a directed verdict made at the conclusion of the case, and that the statutes relied upon are not applicable.

The appellant makes up and breaks up trains for the Pere Marquette, the Wabash, and the Pennsylvania Railroad, switching them for this purpose within the depot yards and transferring freight, express and baggage to other cars wherever necessary. The switching operations are under the sole charge of appellant. At the place where the accident occurred nine tracks extend westerly from the depot and are numbered from north to south. Tracks No. 6 and No. 7 are adjacent and spaced so as to provide sixteen inches clearance between the grabirons when standard cars occupy both tracks at the same time.

On the morning of February 2, 1939, cars which had been a part of Wabash passenger train No. 44 were standing on track No. 7. Among these cars was a club car bearing the number 1552. A Pere Marquette passenger train called the "Sportsman" arrived from Richmond, Virginia, and pulled into track No. 6 where its passengers were unloaded at the cement platform on the north side of the track. In order that the engine on this train might be taken to the roundhouse to be serviced, the appellant's switch engine was coupled to the west end of the train, pulled the cars in a westerly direction far enough to release the road engine and then shoved them back on track No. 6. As a member of the switching crew and acting as "field man" that morning, it was Hillen's duty to ride C. & O. car 258, which was on the end of the Pere Marquette train next to the depot, and stop the train when and where desired by using an air hose equipped with a lever for that purpose. The train, which was moving at four or five miles an hour, was stopped not by Hillen, but by the conductor, and thereafter Hillen was found on the ground between tracks Nos. 6 and 7 with a severe injury to his hip, which resulted in his death. Near the point where Hillen was found stood Wabash car 1552 with a grabiron whose lower end was not connected. A part of one of the two bottom bolts of the grabiron was found in the snow on the ground nearby and appeared to have been sheared off or broken.

Apart from Hillen's own statement there was no direct testimony as to how the injury occurred. It is appellee's theory that the grabiron was defective before the accident and that because it protruded it knocked Hillen from the corner of the car on which he was riding. Appellant claims that the grabiron was in good condition immediately before the accident and was broken either because Hillen allowed his hip to become wedged between the car on which he was riding and the grabiron, or in some other manner. Each side offered testimony tending to support its theory of the case and in large part the two accounts were irreconcilable.

Appellant introduced two witnesses who testified that they had seen the grabiron in question in perfect condition before the accident. Another of appellant's witnesses testified that after the accident it was bent to the east (the direction in which Hillen's train had been moving) and that "It was twisted in on the inside of the steps." On the other hand, one of appellee's witnesses testified that after the accident he noticed that the grabiron was bent outward towards the other track a distance of four or five inches "and a little towards the east." The opinion of appellee's expert was that the bolts holding the grabiron could not be sheared off by Hillen's body, no matter where or how he was riding; and the testimony of the doctor offered by the appellant indicated that a "fairly good sized hole" "two and a half to three inches in circumference" in Hillen's back or hip had been caused by breakdown of tissue as a result of a blow or bruise and consequent infection.

Appellant's objection that inadmissible evidence was received relates to the most telling testimony introduced on behalf of the appellee. Two witnesses were allowed to testify over appellant's objection as to a statement made by Hillen at the scene of the accident, to the effect that Hillen had been riding the corner of the car and had been struck in the back or hip by the grabiron and "got knocked off." Appellant urges that the court, in admitting this evidence, committed reversible error. The statement was received under the res gestae rule which justifies the admission of testimony of a hearsay nature on the ground that the spontaneity and unreflecting character of extra judicial statements are taken as sufficient safeguard of trustworthiness. To be admissible it must appear that such statements were made under circumstances showing lack of opportunity for reflection. The time elapsing after the injury, the extent of the injuries, and all the circumstances bearing on spontaneity and lack of deliberation are factors to be considered. Here the actual time in minutes after the accident was not specifically shown but the circumstances and the movements of the witnesses clearly indicate, we think, that the statement was made about five minutes after the injury. There was evidence that Hillen was discovered while the Sportsman train was still moving, and Hillen's statement was made when he was first moved, as his head was raised from its position in the snow. He was in great pain at the time. Cf. Froman v. Banquet Barbecue, Inc., 284 Mich. 44, 278 N.W. 758.

Much must be left to the sound discretion of the trial judge in rulings on admissibility of evidence of the instant character. Somogyi v. Cincinnati, N. O. & T. P. R. Co., 6 Cir., 101 F.2d 480, 482. As authority for the exclusion of this evidence appellant relies upon a group of cases in which testimony as to statements claimed to be admissible under the principles of res gestae was excluded. Among the cases cited are Rogers v. Saginaw-Bay City Ry. Co., 187 Mich. 490, 153 N.W. 784; Sanborn v. Income Guaranty Co., 244 Mich. 99, 221 N.W. 162; Aetna Life Ins. Co. v. Kern-Bauer, 10 Cir., 62 F.2d 477. We do not think these cases controlling and think rather that the statements here were entitled to be considered. While no two cases present the same problem on a question of this type, and every case must depend on its particular facts, our conclusion is in harmony with the more recent decisions on the point. Froman v. Banquet Barbecue, Inc., supra; Carter v. C. F. Smith Co., 285 Mich. 621, 281 N.W. 380; Marsh v. Preferred Acc. Ins. Co., 6 Cir., 89 F.2d 932. Cf. Rule 43(a), Federal Rules of Procedure, 28 U.S.C.A. following § 723 c. The statement was clearly admissible.

The testimony outlined above disposes of the question as to whether there was substantial evidence to support the verdict both as to the existence of a defective grabiron prior to the accident and as to its being the proximate cause of the injury. The jury evidently disbelieved appellant's testimony that the grabiron was twisted on the inside of the steps and believed appellee's story that the grabiron was bent outward towards the other track a distance of four or five inches, and a little toward the east. It was the function of the jury to decide which of these stories it would accept. Since Hillen's statement as to the cause of his fall was rightly admitted, there is ample evidence that the accident was caused by the defective grabiron protruding at least two or three inches beyond its normal position at the side of the car. It is asserted that Hillen could have stopped the movement at the proper place by standing in the doorway of the lead car but instead chose an unnecessarily dangerous method of performing his duties. These circumstances amount to no more than evidence of contributory negligence or assumption of risk which are "removed from consideration by the Liability Act." Chicago G. W. R. Co. v. Schendel, Adm'r, 267 U.S. 287, 292, 45 S.Ct. 303, 305, 69 L.Ed. 614.

The statements of the porter and conductor of the Wabash car some fourteen months after the accident, that upon the morning of February 2, 1939, each one of them specifically observed the condition of this particular grabiron, evidently were not believed by the jury. The conductor's statement that the grabiron was in perfect condition was made as to the condition existing at 7:40 A. M., the time the Wabash car arrived in the station. No statement was made by the conductor bearing upon the condition at any later moment. The accident occurred at about 8:30 A. M. As to the porter, the jury may have considered it incredible that he should have walked four times along the narrow strip of rough wet ground between tracks Nos. 6 and 7 instead of going to...