Central Trust Co. of New York v. East Tennessee, V. & G. R. Co.

Citation73 F. 661
PartiesCENTRAL TRUST CO. OF NEW YORK v. EAST TENNESSEE, V. & G. RY. CO. (Clark, Intervener).
Decision Date01 October 1895
CourtUnited States District Courts. 11th Circuit. United States District Courts. 11th Circuit. Northern District of Georgia

Arnold & Arnold, for intervener.

Dorsey Brewster & Howell, for defendant.

NEWMAN District Judge.

Under orders of this court in the case above named, Samuel Spencer Henry Fink, and C. M. McGhee are receivers operating the property of the defendant corporation. The case now before the court is the intervention of Martin Clark, claiming damages alleged to have been inflicted on him while in service of the receivers as fireman on the freight train. The facts and the issues involved will appear fully by the report of the special master to whom the intervention was referred which report is as follows:

To the Honorable the Judges of Said Court: The above-stated intervention was duly referred to me, by an order of the court, and I have taken the evidence and heard the argument in the case, and report as follows:

Statement of the Case.

The intervener alleges that he was employed as a fireman by the receivers operating the East Tennessee, Virginia & Georgia Railway on June 14, 1894, and that on the night of that day while in the proper discharge of his duties as such fireman, he was knocked off the engine attached to a freight at a point south of Powder Springs, on the line of said railway, and in the Northern district of Georgia. He alleges that he was knocked off said engine by a station-limit board, which he alleges was located too near the track; that, at the time of the injury to himself, he had received an order from the engineer to look out of the gangway and inspect the condition of a hot box, and, while leaning out of said gangway, he was struck on the side of the head by a station-limit board, and knocked from said engine to the ground. He alleges that the train was running at the rate of twenty-five miles an hour. He sets forth in his petition, specifically the extent of his injuries, and their character. The negligence which he alleges against the defendant, as the cause of the injury, was, that the station-limit board was located too near the track; rendering it unsafe for employees, in the proper discharge of their duties. The defendants admit that the intervener was employed as a fireman at the time alleged, and that said railway was operated by them as receivers. They deny any negligence, and claim that said station-limit board was not located too near the track, but at a reasonably safe distance, and that an injury therefrom could only happen by the negligence of an employee in leaning out too far, or from an improper place on said engine. They claim, further, that the intervener was fully aware of the position of said station-limit board, but insist that he either accidentally fell from said engine, or that the accident was the result of his own negligence. These are the contentions of the parties.

The evidence in the case is somewhat voluminous and contradictory. After a careful consideration of the same, I am of the opinion that the following conclusions are reasonably deducible therefrom: The station-limit board in question, a few days after the accident, was taken up by the employees of the defendant, and removed three feet further from the track than where it had originally been placed. From an actual measurement, it was shown that the post was located, at the time of the accident, six and on-half feet from the near rail of the track, the measurement being from the hole left in the ground where the post formerly stood. The post was about seven feet high from the ground, having at the top a board with the words 'Station Limit' printed thereon, extending towards the rail eighteen inches. This would bring the end of the board on top of the post four and one-half feet from the near rail of the track. It was shown from the evidence that the engine extended over the rail from two to three feet. These facts clearly show that the station-limit board was sufficiently near the track to have struck the employee, if he had been leaning out from the gangway two and one-half feet. Was this station-limit board, therefore, so near the track as to render it dangerous to servants of the defendant in the proper and reasonable discharge of their duties? On this point the evidence of the defendant fixes the customary and safe distance of such obstructions at least eight feet from the rail of the track,-- one foot and a half further than the actual measurement makes this station-limit board. In view of these facts, I think it is fair to conclude that this particular post was located too near the track.

In the next place, was the intervener injured, as he claims, by having been struck by said station-limit board and thrown to the ground. On this point there is some doubt, but my conclusion is that the intervener was knocked from said engine, by leaning out therefrom, in obedience to an order of the engineer, for the purpose of looking at the condition of a hot box on one of the cars. The facts proven, which establish the correctness of this theory, are as follows: The fireman was knocked off at or near the station-limit board. This is shown by the uncontradicted evidence of all the witnesses. The intervener swears positively that he felt something strike his head while he was standing, looking out at the hot box; that he knew something hit him, but he could not tell what it was that knocked him from the engine. Both physicians who testified in the case swore that, when they examined the head of the intervener, they discovered on the back of his head, on the right-hand side, a wound, and that his face, his nose, and his eyes were also injured and mangled. This testimony shows that the intervener received injuries both in front and on the back side of his head. Add to these facts the further fact that this station-limit board was sufficiently near to have caused the accident, and I think the conclusion that the intervener was knocked off by the board is reasonably certain, unless there are other facts that account for this injury. It is insisted by the defendant that the station-limit board did not knock the intervener off the engine-- First, because the evidence shows that he could not have been struck by said board in the manner as testified to by him, it being impossible for a man to lean out far enough to come in contact with the board. This conclusion, the master thinks, is based upon the testimony of witnesses who make their calculations from the distance the board is now from the track, and not from the distance the board was at the time of the accident. In addition to these facts, and on the request of the master, the engine was furnished by the defendants, and, in company with the counsel for both sides, a practical experiment was made; and it was shown to my satisfaction that, while the injury did not occur just as described by the intervener in his testimony, yet he could have been struck by the board substantially as described by him. The post was taken up, and placed in the hole where it was located at the time of the accident. The intervener was located as he testified he was, and the engine moved by the board. It didn't strike the head of the intervener, but it was seen by the master that a very slight change in the position of the intervener made it possible for him to have been stricken by said board. In view of the fact that it was night, that the engineer ordered the intervener to look out and see the condition of the hot box, I don't think it reasonable to hold the intervener to an unerring recollection of his position at the time of the accident, provided the facts show that in the discharge of his duty, and without negligence on his part, he could have been struck by said station-limit board while leaning out of said gangway and looking at the condition of said hot box; and the experiment satisfies my mind that such could have been the result. In the next place, it is contended by defendants that the body of the intervener was found, shortly after the accident, some sixty or ninety feet south of the station-limit board, in...

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6 cases
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    ...McDade, 191 U.S. 64; Railroad v. Michaelis, 57 Kan. 474; Railroad v. Thompson, 94 Ala. 636; Railroad v. Davis, 92 Ala. 300; Central Trust Co. v. Railroad, 73 F. 661; v. Somerset Traction Co., 98 Me. 61; Railroad v. Mansell, 138 Ala. 548; Murphy v. Railroad, 115 Mo. 111; Railroad v. Thompson......
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