Reetz v. Chicago & ER Co.

Decision Date06 January 1931
Docket NumberNo. 5596.,5596.
Citation46 F.2d 50
PartiesREETZ v. CHICAGO & E. R. CO.
CourtU.S. Court of Appeals — Sixth Circuit

C. J. Gugler, of Galion, Ohio (J. W. McCarron, of Cleveland, Ohio, on the brief), for appellant.

B. D. Holt, of Cleveland, Ohio (Cook, McGowan, Foote, Bushnell & Burgess, of Cleveland, Ohio, on the brief), for appellee.

Before DENISON and HICKS, Circuit Judges, and SIMONS, District Judge.

SIMONS, District Judge.

Appellant's decedent, Gustav T. Reetz, was a freight conductor on appellee's railroad, and as such in charge of a train operating from Huntington, Ind., to Chicago. At a point near Bolivar, Ind., the train parted due to the breaking of couplers and drawbars, this breaking the air line and bringing the train to a stop. Reetz and O'Dier, the brakeman, were at the time in the caboose. The track at this point runs east and west, the train being headed west. Reetz and O'Dier secured their lanterns and started westwardly along the train on the north side, endeavoring to locate and remedy the trouble and get the train under way, O'Dier being about fifty feet ahead of Reetz. At a point where the train had stopped and some distance west of the caboose, there is a bridge over a driveway. With cars standing on the bridge the space between the north side of the train and the edge of the bridge was narrow. There was no passageway or guard railings along the north side of the track at the bridge, and no means provided for a pedestrian to pass along the bridge on the north side of a standing train. Before O'Dier reached this subway he crossed over the train to the south side, and after crossing the bridge he again crossed to the north side, and not observing Reetz's light came back to the subway and found that Reetz had fallen to the driveway below, a distance of approximately fifteen feet. Reetz received injuries which resulted in his death. The claims of negligence are: (1) That the absence of a footpath and guard railings along the abutments of the bridge was a violation by defendant of its duty to provide the plaintiff with a safe place in which to work. (2) That the defendant violated the provisions of the Safety Appliance Act, United States Code, Title 45, sections 1 to 16 (45 USCA § 1-16), Act of 1893, as amended in 1910, by operating a train with defective couplers and drawbars. At the close of plaintiff's evidence the court sustained a motion directing a verdict in favor of the defendant. The plaintiff appealed.

1. With respect to the first claim of negligence it is sufficient to say that there is nothing in the record to indicate that the defendant was in any way negligent either in the method of constructing the bridge or in the way that it was maintained. The bridge was of modern design, in good condition and repair, and similar to other bridges on defendant's railroad. There is no evidence that guard railings or footpaths are used in the construction of railroad bridges in open country, and even were we to assume that the absence of such footpath and guard railings constituted negligence, there is nothing in the record to indicate that their absence was the proximate cause of the injury, since it is not known just how or from what point Reetz fell into the subway. Delaware, Lackawanna & Western Railroad Company v. Koske, 279 U. S. 7, 49 S. Ct. 202, 73 L. Ed. 578; Chicago, Milwaukee & St. Paul Railroad v. Coogan, 271 U. S. 472, 46 S. Ct. 564, 70 L. Ed. 1041; Howe v. Michigan Central Railroad, 236 Mich. 577, 211 N. W. 111.

2. In respect to the second claim of negligence, the failure of the defendant to comply with the provisions of the Safety Appliance Act, it is conceded that the train was being operated upon a highway of Interstate Commerce, that the train stopped at the place of the injury because of the failure of one or more of the appliances which the defendant was obliged to install and maintain under the act, and that injury followed. The only question in dispute is as to whether the failure of the drawbar and couplers was the proximate cause of the injury.

Cases have frequently been before the courts wherein upon conceded or established facts the absence or failure of a required appliance was followed in point of time by injury, and wherein the placing of liability rested upon a correct determination as to whether the fact of absence or failure of the appliance bore a causal relation to the fact of injury. If from the earlier cases construing the statute there was any difficulty experienced in apprehending the applicable rules for determining whether upon a given state of facts there existed between fault and injury a relation of cause and effect, that difficulty has now been resolved, and the law is, we think, clear. In the case of Davis v. Wolfe, 263 U. S. 239, 44 S. Ct. 64, 66, 68 L. Ed. 284, where recovery was upheld, the late Mr. Justice Sanford had occasion to review the more important Supreme Court decisions upon the question, and to point out the rule as it had up to that time been developed in the cases of St. Louis & S. F. Railroad Company v. Conarty, 238 U. S. 243, 35 S. Ct. 785, 59 L. Ed. 1290, and Lang v. New York Central Railroad, 255 U. S. 455, 41 S. Ct. 381, 65 L. Ed. 729, in which liability was denied, and the cases of Louisville & N. Railroad v. Layton, 243 U. S. 617, 37 S. Ct. 456, 61 L. Ed. 931, and Minneapolis & St. L. R. Co. v. Gotschall, 244 U. S. 66, 37 S. Ct. 598, 61 L. Ed. 995, where recovery was permitted, in the following language:

"The rule clearly deducible from these four cases is that, on the one hand, an employee cannot recover under the Safety Appliance Act if the failure to comply with its requirements is not a proximate cause of the accident which results in his injury, but merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury; and, on the other hand, he can recover if the failure to comply with the requirements of the Act is a proximate cause of the accident, resulting in injury to him while in the discharge of his duty, although not engaged in an operation in which the safety appliances are specifically designed to furnish him protection."

This construction of the act was found by Mr. Justice Sanford to be substantially that given to it by the Circuit Courts of Appeals in the Second, Fourth, and this Circuit in Director General v. Ronald, 265 F. 138; Philadelphia & R. Railway v. Eisenhart, 280 F. 271, and McCalmont v. Pennsylvania Railroad, 283 F. 736. There are now urged upon us as authority for the appellant's contention that there was proximate cause between the failure of the safety appliance and the injury in the present case two very interesting decisions, first, the Minneapolis, St. Paul & S. S. M. Railway Company v. Goneau, 269 U. S. 406, 46 S. Ct. 129, 70 L. Ed. 335, in which the opinion was likewise written by Mr. Justice Sanford, and second, the case of Erie Railroad Company v. Caldwell, 264 F. 947, decided by this court before the decision of the McCalmont Case, and before the decision in Davis v. Wolfe, supra. The analogy up to a certain point between the chain of circumstances in the Goneau Case and that in this case is surprisingly close. In the Goneau Case, as here, a freight train...

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