123 F.2d 487 (8th Cir. 1941), 11997, Thomson v. Boles

Docket Nº:11997.
Citation:123 F.2d 487
Party Name:THOMSON v. BOLES.
Case Date:November 25, 1941
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit
 
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Page 487

123 F.2d 487 (8th Cir. 1941)

THOMSON

v.

BOLES.

No. 11997.

United States Court of Appeals, Eighth Circuit.

November 25, 1941

Page 488

[Copyrighted Material Omitted]

Page 489

Alfred E. Rietz, of St. Paul, Minn. (Warren Newcome, of St. Paul, Minn., and W. T. Faricy, of Chicago, Ill., on the brief), for appellant.

William H. DeParcq, of Minneapolis, Minn. (Eugene A. Rerat and Walter J. Welch, both of Minneapolis, Minn., on the brief), for appellee.

Before SANBORN and JOHNSEN, Circuit Judges, and NORDBYE, District judge.

NORDBYE, District Judge.

This action was brought by William F. Boles against Charles M. Thomson, as trustee of the Chicago and North Western

Page 490

Railway Company, under the Federal Employers' Liability Act, 45 U.S.C.A. 51 et seq., to recover damages for injuries sustained while employed as a brakeman on appellant's railroad. A verdict was returned for the plaintiff and the trustee appeals from the judgment entered thereon. The parties will be referred to as designated in the trial court.

Boles was employed as a brakeman by the defendant company. On June 12, 1940, the day of the accident, he was engaged, among other duties, in transmitting signals to the engineer of a work train employed on defendant's line in driving piles in a certain bridge which spans the Kickapoo Creek near Kickapoo Juction, Illinois. The southerly portion of the bridge is of steel construction and the northerly 178 feet are of wood construction. Along the easterly side of the wooden portion of the bridge was a guardrail or fence alongside a plank walkway which extended for some distance adjacent to the railroad track. The guardrail consisted of 4 x 6 uprights bolted to stringers or ties, with three 2 x 4's spiked to the inside of the uprights. At the top of the upper 2 x 4's as well as on the uprights, was spiked a 2 x 6 plank. The railing was about 40 inches in height measured from the plank walkway to the top of the 2 x 6. The walkway extending along the railroad track was 2 feet 10 inches in width. Next to the walkway and parallel thereto and between it and the rails was a 6 x 6 timber. The distance between this timber and the nearest rail of the track was 2 feet 6 inches. The walkway was maintained for trainmen to use while walking along the trains, and the railing was for their protection.

Prior to this accident, defendant had made plans to reconstruct this bridge. In order to drive concrete piles in certain parts of the bridge, sections of the guardrail had been taken out and a new guardrail put in. Six of these sections or gates had been put in along this railing. The purpose of these gates was to enable the workmen to remove a particular section to accommodate the hammer of the pile driver when piles under the walkway were being driven. These gates were nailed and the nails would have to be drawn out in order to remove them. However, as the instant work was being carried on, the guardrails were intact and presumed by everyone to be safe and secure, and, as far as the evidence indicates, afforded sufficient protection for the workmen who were required to use the walkway in connection with their train duties. At no time on the day of the accident were there any open sections in the guardrails. Apparently, these gates or sections had been installed prior to the day of the accident so as to enable their removal when necessary, and thus facilitate the use of the pile driver when the occasion required it for the driving of piles at any designated place.

In carrying on the work of driving piles, defendant employed a work train, consisting of a locomotive, caboose, flat car and pile driver. Plaintiff's duties as brakeman consisted of flagging the work train as it moved on the bridge from the north. The first movement concerned the bringing of a pile and setting it at a point toward the northern end of the bridge. After placing this pile, the train took up another pile and moved it to a point some 25 feet north of where the first pile was set. It was the duty of the plaintiff to spot the pile driver, and, in the performance of these duties, he was on the walkway in order to be in a position to give the necessary signals to the engineer. It was necessary for him to be on this walkway, not only for the purpose of giving signals, but because it was the safest and most convenient place for him to be. Furthermore, in his position thereon, the engineer could readily see him and observe any signals that he might give from time to time. Immediately before the accident, the plaintiff was standing some short distance south and east of the pile driver. The pile driver was engaged in driving a pile in the center of the track, which operation did not disturb the guardrail or necessitate the removal of any gate therein, and while at the immediate moment there were no signals to be given, nevertheless, in the performance of his duties, plaintiff was required to be in a position where, if any emergency arose or any situation existed which required signals to the engineer, he would be on duty for that purpose. While there is a marked dispute in the testimony as to whether plaintiff at this particular time was sitting on a new section or gate of the guardrail, as was contended by some of defendant's witnesses, or was merely leaning against a part of the oil railing north of the gate, there was ample evidence for the jury to find that, while plaintiff was up against the railing and

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leaning against it, he was not sitting on the guardrail or any part of the gate. He contends that his right foot was on the lower rail of the old guardrail and his left foot was resting on the walkway. Hannum, the conductor, and plaintiff's immediate superior, stated that plaintiff was occupying a usual and customary position immediately prior to the accident and that there was nothing unusual or improper about it. Just before the accident, according to plaintiff's evidence, Hannum put his right foot on the bottom railing at a place close to where plaintiff was located and started to lean against it, and thereupon a part of the railing broke, gave way, and both were precipitated to the ground some 22 feet below. It was a section of the old railing which gave way. A part of this section was produced by the defendant at the trial, and an examination thereof indicated that the wood was cracked, decayed and rotten; that the nail holes were worn larger than the nails; and that a splice assuming to make secure the old railing adjacent to the gate had been negligently constructed. Defendant, however, contends that the railing produced in court was not the portion of the railing against which plaintiff was leaning, or on which he was sitting. It is the defendant's contention that plaintiff was sitting on one of the gates hereinbefore referred to, and that he lost his balance and grabbed the old part, pulling it out, causing a part of the old railing to be torn away at the time he and the conductor fell.

The principal points relied upon for reversal are: (1) That the trial court refused to grant defendant a directed verdict; (2) that there is no substantial evidence of negligence on the part of the defendant; (3) that there is no substantial evidence that the negligence of the defendant, if any, was the proximate cause of the injury to the plaintiff; (4) that the verdict is not only contrary to, but is against the manifest weight of the evidence: (5) prejudicial and inflammatory statements to the jury in the opening statement of plaintiff's counsel; (6) errors in ruling on the reception and rejection of evidence; (7) prejudicial, inflammatory and unwarranted statements by plaintiff's counsel in his closing argument; and (8) errors in the court's charge and in refusing to instruct the jury as the defendant requested. We will consider these contentions in the order stated.

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