Western & Atlantic R. R. v. Gentle

Citation198 S.E. 257,58 Ga.App. 282
Decision Date15 July 1938
Docket Number26721.
PartiesWESTERN & ATLANTIC R. R. v. GENTLE.
CourtUnited States Court of Appeals (Georgia)

Rehearing Denied July 20, 1938.

Syllabus by the Court.

In a suit against a railroad company for the death of an employee based upon an alleged violation of that section of the Safety Appliance Act, 45 U.S. C.A. § 2, making it unlawful for any railroad engaged in interstate commerce "to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men being between the ends of the cars," where the evidence showed that the defendant railroad had equipped the cars in question with "couplers coupling automatically by impact," as described in the above section and the plaintiff's right to recover depended wholly upon the fact that the couplers failed to couple upon first impact, and the evidence for the defendant, uncontradicted by any offered by the plaintiff showed that the couplers worked a short time after the occurrence in question, and, further, that the couplers were shortly thereafter thoroughly inspected and were found to be in good working order and no repairs or adjustment of said couplers were necessary, a verdict for the defendant was demanded. The trial judge therefore erred in overruling the motion for new trial.

Error from Superior Court, Bartow County; C. C. Pittman, Judge.

Action by J. H. Gentle, administrator, against the Western & Atlantic Railroad for the death of Albert Evans, deceased who was killed while performing duties as a freight train brakeman. Judgment for plaintiff, and defendant brings error.

Reversed.

STEPHENS P.J., dissenting.

Walton Whitwell, of Nashville, Tenn., and Neel & Ault, of Cartersville, for plaintiff in error.

Arnold Gambrell & Arnold, of Atlanta, and W. T. Townsend, of Cartersville, for defendant in error.

MacINTYRE Judge.

The petition of John H. Gentle, administrator of the estate of Albert Evans, deceased, against the Western & Atlantic Railroad made substantially the following case: "On August 9, 1936, and between one and two o'clock a. m. * * * Albert Evans (who will be hereafter referred to as the decedent), was employed by the defendant as a brakeman on one of its freight-trains which was operating on this occasion from Atlanta, Georgia, to Chattanooga, Tennessee." The defendant in operating this train and the deceased in performing his duties in connection therewith, were engaged in interstate commerce. "Said freight-train upon which decedent was working as a brakeman was what is known as a pick-up freight, placing cars at various points between Atlanta and Chattanooga, and picking cars up at various points between said cities and carrying freight and cars between said cities." When the aforesaid train reached a point somewhat less than two miles north of Cartersville and near a place known as Junta, at about the above-alleged time and date, it "stopped on the main line in order to place a car on a siding, and in order to take a car from the siding and place it in the train." At this point the railroad runs generally north and south and the direction towards Chattanooga is referred to as north and the direction towards Cartersville is referred to as south. "When said freight-train stopped * * * it was broken at the south end of the car to be left upon the siding. After the train was broken at this point, the north section of the train, consisting of the engine and two cars, proceeded north up the track and passed the switch which led to the siding upon which the car was to be left. The north section of the train, after said switch was thrown, backed into the siding and coupled the car to be left on the siding to the north end of the car which was to be removed from the siding. The north section of the train then pulled out on to the track on which the rest of the freight-train was standing, and, after the switch was thrown, backed down towards the south section of the train which was standing with the brakes on. The north section of the train backed down upon the south section, and the two sections came together with the south end of the car which had been removed from the siding contacting and running against and into the coupling on the first car of the south section with sufficient force to have caused the cars to couple by impact." The track at this point is slightly downgrade towards the north. "After said two sections of said train had come together and made contact, the train was broken at the south end of the car to be left upon the siding and at the north end of the car which had just been removed from the siding and placed in the train." The north section of the train, consisting of the engine and two cars, then proceeded back up the track past the switch which led into the siding. The decedent threw the switch, and the north section started to back into the siding. At this time the decedent was riding upon the south car, and was in a position and place in which his duties required him to be. Before the south car cleared the main line, the car which had been removed from the siding and placed in the train on the main line moved down from the south section of the train and rolled down upon the north section, and in and because of said collision decedent was so crushed and mangled that he died a short time thereafter. "Said car which became separated from the south section of said train and which rolled down, upon, and against the forward section of said train, was equipped with automatic couplers, which, when in proper condition, operate by impact and couple when the coupler of one car comes in contact with the coupler of another car. The automatic coupler on the south end of said car which became detached and which had been removed from the siding was defective in that it failed to couple by impact when the two sections of said train came together after said car had been removed from the siding. * * * The failure of said car which became detached to couple by impact resulted from a defective coupling appliance, and said failure of said coupler to operate by impact was a violation of the Federal Safety Appliance Act and directly and proximately contributed to and caused the injury and death of the decedent."

The petition contained two counts and the second count made substantially the same case as above narrated, except that it charged that the automatic coupling of the front car of the south section of the train and the car which was backed into same and which separated therefrom causing the injury and death of decedent, were both defective, and would not couple automatically by impact. The allegations of the petition concerning the manner in which the deceased met his death and the switching movements of the train previous thereto were fully sustained by the evidence. Dudley Barton, a witness for the plaintiff and the engineer on the train testified in substance that the couplers on the cars in question were what were known as automatic couplers; that his movements backwards to couple the car taken from the sidetrack (coal car) to the north car of the rest of the train "was the ordinary movement in making a coupling;" that he could tell when the impact was made,-could feel the vibration of it; that before pulling the coal car from the sidetrack the deceased went to the south end of it "and I suppose fixed the coupling where he thought it would couple." He further testified: "Even if couplers are in good condition, they do not always couple on the first impact. It happens pretty often that you have to make one or two or three trials before they couple. I don't guess a brakeman even can tell how hard to hit to make a coupling, except to try it. It is just merely, with the engineer, it is just a guess, to try it and see if it makes, and then if it don't make to try it again, either hit it harder or easier-lighter, whatever they signal you to do back there. After you try once and it don't make, the brakeman will signal you either to hit it harder or to hit easier, until the coupling finally makes. * * * I have frequently had them where they don't couple the first time, plenty of times. When I told Mr. Gambrell (attorney for the plaintiff) I came back in the usual manner and speed I meant by that that I came back just as Mr. Evans (the deceased) * * * signaled me to come back up there." He also testified: "I couldn't tell whether I had hit it hard enough or too hard or not hard enough, I couldn't tell at all."

Gus Thomas, a witness for the plaintiff and a former railroad employee who had had experience in switching trains testified that when the automatic couplers are in proper position to couple and the cars come together at a speed of from two to six miles per hour "they are supposed to couple automatically by impact. If they are in condition they will couple automatically. If they do not couple automatically that would indicate they are out of order. * * * The ordinary speed that a car is backed into another car for the purpose of coupling is about from 2 to 6 miles an hour. * * *" If it failed to couple one time, that is an indication that it is out of order. If it is in order, it will couple; that if a coupling is made at too great a speed,-from ten to fifteen miles per hour, they might not couple; that if they did not come together with sufficient force they would not couple. He further testified: "I did not work out while I was in service, any formula or any definite rate of speed that I had to go to make couplings. Some cars, in coupling are harder to couple than others. Some you would hit them harder and some you wouldn't. That would be indicative that some would be in good...

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