Southern Ry. Co. v. Mays

Decision Date09 December 1916
Docket Number1449.
Citation239 F. 41
PartiesSOUTHERN RY. CO. v. MAYS. [1]
CourtU.S. Court of Appeals — Fourth Circuit

Thomas B. Gay and Eppa Hunton, Jr., both of Richmond, Va., for plaintiff in error.

Volney E. Howard and Irvin P. Whitehead, both of Lynchburg, Va., for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

In disposing of the questions involved herein the defendant in error will be referred to as plaintiff, and the plaintiff in error as defendant; such being the relative positions occupied by the parties in the court below.

The plaintiff was an employe of defendant, and brings this action to recover for personal injury, pursuant to an act of Congress known as the federal Employers' Liability Act. Among other things it is agreed:

'That the defendant was a common carrier by railroad engaged in interstate commerce, that it was operating the railroad mentioned in the declaration as an interstate railroad in interstate commerce, and that the plaintiff was actually engaged as an employe of the defendant in the performance of interstate work on said railroad at the time of receiving the injuries complained of in the declaration.'

It appears that the plaintiff was a member and the 'foreman' (called 'derrick foreman') of a gang of six men,employes of defendant, called a a 'wrecking crew,' with headquarters at Monroe, Va whose duty it was, upon receiving orders, to go with the Monroe 'wrecking train' to any needed point for the purpose of removing wrecked cars or other obstructions from defendant's tracks. This wrecking train consisted of a tool car, truck car, flat car, camp car, and a derrick car. Upon the latter were installed a derrick and a steam engine for operating the same, weighing 74 tons. When the wrecking train was to be moved from one place to another, and while it was out in service, as on this occasion, it was occupied by the wrecking crew as their place of abode at all times when they were not actually at work; and in all of its movements in shifting on the side tracks or when running on the road, it was in charge of and operated by a regular 'train crew,' and was drawn by a regular locomotive engine. This train crew consisted of a conductor, an engineer, a fireman, and two brakemen.

The wrecking crew and the wrecking train of which the plaintiff was foreman was sometimes called an 'outfit,' and this one was called the 'Monroe outfit.' This outfit, along with a similar outfit from Spencer, N.C., had been engaged for two days in removing a wreck which obstructed defendant's track at Reedy Fork, in the state of North Carolina. On the evening of April 6, 1914, the removal of the wreckage not being completed, the Monroe outfit (the wrecking crew and wrecking train) had been assembled at Brown's Summit, a short distance from Reedy Fork, for the purpose of being taken to Greensboro for the night, to be returned to the scene of the wreck the following morning, for continuing the work. During the day a number of disabled cars had been taken from the wreck and assembled at Brown's Summit. It was a part of the defendant company's program that these disabled cars and the five cars composing the Monroe wrecking train should be made up into a single train, and that this train as thus made up should be run from Brown's Summit to Greensboro.

Preparatory to being placed into this train, the five or six disabled cars had been coupled or chained together by the wrecking crew, with the aid of Conductor Moore of the train crew (as was his duty) under the general supervision of the plaintiff. After the completion of this work, it is insisted by plaintiff that the duty of himself and the other members of the wrecking crew was ended. After the plaintiff had informed Conductor Moore that this work was done, the plaintiff and all of his crew repaired to the cars of the wrecking train to arrange the tools in these cars for the trip to Greensboro and to eat supper, all of which was in the line of their duty. Thereupon Conductor Moore took charge of the situation; it being the duty of himself and his train crew to assemble and couple the disabled cars to the cars of the wrecking train, making them into a single train, and, after thus making up the train, to run it into Greensboro, all under his sole direction. The plaintiff and his crew took no part in this work, it not being a part of their duty.

It appears that at this juncture the two brakemen of Conductor Moore's train were absent, and that the conductor undertook to move the train by the use of the locomotive engine, without the aid of the brakemen or any other person. It is insisted by plaintiff that the conductor was anxious to start for Greensboro, and therefore did not wait until he could get aid from his own crew, or from Conductor Tarleton and his crew; that, instead of moving the train at that time, he should have waited until it could have been moved with reasonable safety. However, it appears that the conductor succeeded in shifting and getting all the cars together and coupled up on one of the side tracks, with the engine in front looking north, and on a very steep downgrade with five or six disabled cars placed next to the engine, and all the 'wrecking train,' including the 74-ton derrick car, which was coupled behind and next to the disabled cars, all coupled into one train. The train as thus made up could not be operated by air brake control from the engine, because the air brake apparatus as well as the hand brakes on the disabled cars had been crippled, and air brake connections with the wrecking train could not be made, because they were all behind the disabled cars. The conductor caused the engineer to put the train in motion in this unprotected condition, which caused the coupling between two of the disabled cars to break, thus parting the train, and subsequently the rear part of the train crashed into the forward part from lack of control, causing a collision which was so violent in its nature that two of the wrecking crew were thrown many feet and prone upon the floor of the car, others were knocked against the wall of the car, stoves and tables were wrenched from their fastenings, and the heavy trucks were displaced and thrown from the flat car, so that it required a derrick to replace them. The plaintiff was thereby injured.

At the close of the evidence the defendant moved the court to direct the jury to find a verdict in its favor, which motion was refused, and the case was submitted to the jury with instructions, and the jury found for the plaintiff and assessed his damages at $7,500, from which judgment the defendant sued out a writ of error.

There are a number of assignments of error, but upon argument in this court it was practically conceded that the real question involved in this controversy is as to whether the plaintiff assumed the risk incident to his employment, and therefore is not entitled to recover. It is urged in support of this contention that the plaintiff knew of the unsafe condition of the cars and especially the manner in which they were coupled together, and that in boarding the train at that time he assumed all the risks incident thereto, and that the court below erred in refusing to direct a verdict in favor of defendant upon these grounds. It appears from the record that plaintiff relied solely on the second count of the declaration. Among other things, the court below in its charge made the following statement as to the grounds set for the in the declaration upon which plaintiff relied for a recovery in this case:

'The jury will not be concerned with any matter contained in the first, third, and fourth counts; the plaintiff not asking anything under those three counts of the declaration. The plaintiff, however, relies on the negligence alleged in the second count of the declaration. The acts of negligence alleged in the second count and relied on by the plaintiff are the following, namely: Negligence on the part of the conductor (1) in causing or permitting
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