Chicago Junction Ry. Co. v. King

Decision Date03 February 1909
Docket Number1,520.
PartiesCHICAGO JUNCTION RY. CO. v. KING.
CourtU.S. Court of Appeals — Seventh Circuit

Contributory negligence of an injured minor employé held, under the evidence, for the jury.

Defendant in error as plaintiff below recovered judgment for damages on account of personal injuries. The two counts on which the case was submitted to the jury were based on an alleged violation of the safety appliance acts. Act March 2, 1893, c 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174); Act April 1, 1896, c. 87, 29 Stat. 85; Act March 2, 1903, c. 976, 32 Stat. 943 (U.S. Comp. St. Supp. 1907, p. 885). In one count it was alleged that the defendant, an interstate carrier 'negligently, unlawfully, and contrary to the statutes of the United States in such case made and provided, hauled and used upon its said railway line and certain tracks connected therewith in moving interstate traffic a certain car equipped with a certain automatic coupler, which said coupler, the plaintiff alleges, was then and there in such a defective broken, and inoperative condition of repair that it could not be coupled from the side of said car without the necessity of its switchman going between the end of said car and the car to which it was to be coupled; and the plaintiff further alleges that it then and there became his duty to the defendant as such switchman to couple said car so equipped with said defective, broken, and inoperative coupler onto a certain other car then standing upon the same track and but to wit, a few feet from it, and as a direct result and in consequence of said defective, broken, and inoperative condition of said coupler he was then and there required to, and did, go between the ends of said cars for the purpose of repairing and adjusting said defective and inoperative coupler, so that said cars could be coupled together, and while he was so between the ends of said cars for the purpose and engaged in the work aforesaid, and while, as he alleges, he was exercising ordinary care and caution for his own safety, said cars were then and there shoved together, and as a direct result and in consequence of his being so required to go and be between the ends of said cars as aforesaid his right hand and wrist and arm were thereby then and there caught between said couplers and cars. ' The other count contained additional allegations to the effect that the engineer knew or ought to have known that plaintiff was between the cars and negligently moved the cars without giving plaintiff warning.

Questions regarding the applicability of the statute, the character of the conduct of the parties, and the correctness of certain instructions require that a summary of the evidence be given; and we adopt for the most part the statement given by counsel for the railway company.

Plaintiff had been employed by defendant for a year and a half as switchman in the Union Stockyards district in the city of Chicago. He had worked for three months prior to the accident with the same crew, consisting of engineer, fireman, conductor, rear switchman, and head switchman. He was the head switchman, and it was his duty to follow the engine.

In the Union Stockyards there were several different sets of tracks known by different names, and each constituted a different switching division. Plaintiff had worked at different times on all of these tracks; but for about three months prior to the accident he had switched up and down the Packingtown tracks, which consist of two tracks called the 'east and west main tracks' running north and south from Fortieth street to Forty-Seventh street, and platform tracks and side tracks running at short intervals in both directions from these main tracks into different industries and switching yards. About three times a day during this time plaintiff's crew went for cars to the north end of the Packingtown west main track, and shoved them south, and distributed them over these different side tracks. The great bulk of business from that point was toward the south. The engine usually worked from the north end of the train, upon the west main track, but occasionally, when that track was blocked, would go over onto the east main track to do the same business. The business was purely a switching business.

The accident occurred December 7, 1906, between 9 and 10 o'clock in the morning. A train consisting of 14 or 15 freight cars, including car No. 6189 of the Armour Refrigerator Line, was standing on the north end of the Packingtown west main track for about an hour before 9 o'clock. The south car was several car lengths north of a street crossing known as 'Exchange avenue.' The engine with which plaintiff was working came from the south on the east main track without cars attached, and at about the north end of the cars standing on the west main track followed the curve in the track to the northwest to a switch clear around the curve, and then came back east and south through the switch onto the west main track where plaintiff made a coupling of the engine with the north end of the standing train. The conductor, Corrigan, had gotten off the engine at Exchange avenue to walk north along the standing cars and take the number of the cars, and to learn where they were to be switched. The rear brakeman, Shaw, stayed with the engine until about the time the coupling was made. Shaw gave a signal to the engineer to go back north, at which time Shaw discovered that the train was cut in two, six cars from the engine. He thought Conductor Corrigan had made the cut there, as the fifth and sixth cars from the engine were for delivery to Nelson Morris & Co. at a point northeast of where the train was standing. The six cars were pulled back northwest around the curve, and then shoved east onto the Nelson Morris & Co. track, where the fifth and sixth cars were cut off, and the engine with the four remaining cars attached went back again to the switch and shoved the four cars in again on the west main Packingtown track. Shaw rode on top of the fourth car from the engine, and plaintiff stood on top of the car next to the engine. As the four cars approached the standing train, Shaw gave a signal to stop, and, just before the cars came in contact, he saw that the knuckle upon the north car of the standing train was broken. This was Armour Refrigerator Line car 6189.

Up to that time Shaw had no knowledge that the coupler was broken. Conductor Corrigan also did not learn of the broken knuckle until that time. The conductor was then standing on the ground at a point near the opening between the cars in the standing train and the cars attached to the engine. Corrigan and Shaw examined the broken knuckle, and found that there was a new break at the point where the knuckle fitted into the lock which held the knuckle shut after the cars were coupled. The front part of the knuckle was in the same condition as though there had been no break, and there was nothing about the character of the break to prevent the car from being shoved further south.

Corrigan was assistant yardmaster as well as the conductor of this particular train, and he testified that he had authority to decide what to do with the car. He decided to shove it south to a repair shop belonging to Armour & Co., known as the 'Old Lipton House,' which was about three blocks south of the point where these cars stood, and where a supply of knuckles of this type was kept, in order to get a knuckle to fit into the coupler. He testified that he could have repaired the car where it stood, but thought it more convenient to move the car. He walked south along the tracks to line up the switches for this movement, and Shaw went to the south end of the train and got up onto the last car so as to signal the engineer when the switches had been set.

A short distance south of Exchange avenue Corrigan met a car inspector for Armour & Co., one Tony Tozinski, and told Tony there was a broken knuckle on an Armour refrigerator car, and that they were going to shove the train down, and asked Tony to get a good knuckle to replace it. Tony said that he would get it. He went to the car, looked at the coupler, found that it was a new Gould coupler with a fresh break across the tongue, and went back to his repair shanty and got another knuckle.

Plaintiff from the top of the car next to the engine saw Corrigan and Shaw talking, but did not know what they were doing, and remained on the car until he saw Corrigan walk down towards Exchange avenue to throw the switches. He knew that throwing the switches in this manner was the regular thing in switching south. He also saw Shaw walk down towards Exchange avenue. Plaintiff then walked down to where he had seen Corrigan and Shaw talking, and saw the opening between the cars and the broken knuckle. There was testimony, including that of Corrigan, that it was customary for brakemen on defendant's road whenever they found defects in couplers to repair them if they could. Plaintiff saw that the defect was in a Gould Improved Knuckle, and remembered that there was a knuckle of this description lying on the front end of the engine which plaintiff had himself picked up alongside the track, and placed there a short time before. Neither Corrigan nor Shaw knew that this knuckle was on the engine, and Corrigan did not know of any knuckle of that type nearer than the Lipton repair yard. There are 97 different catalogued varieties of knuckles, which are not interchangeable, and will not work properly in any coupler except those of which they are especially designed as a part, and they are of varying weights.

The weight of the knuckle of the Gould improved knuckle is 51 pounds. The testimony was conflicting in regard to there being a custom on defendant's road to...

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