Virginian Ry. Co. v. Staton

• Decision Date: 08 June 1936
• Docket Number: No. 4027.,4027.
• Citation: 84 F.2d 133
• Parties: VIRGINIAN RY. CO. v. STATON.
• Court: U.S. Court of Appeals — Fourth Circuit

84 F.2d 133 (1936)

VIRGINIAN RY. CO. v. STATON.

No. 4027.

Circuit Court of Appeals, Fourth Circuit.

June 8, 1936.

John R. Pendleton, of Princeton, W. Va. (W. H. T. Loyall and W. C. Plunkett, both of Norfolk, Va., on the brief), for appellant.

Joseph M. Sanders, of Bluefield, W.Va. (Walter G. Burton, of Princeton, W. Va., Grover C. Worrell, of Charleston, W. Va., and Sanders & Day, of Bluefield, W. Va., on the brief), for appellee.

Before PARKER, NORTHCOTT, and SOPER, Circuit Judges.

SOPER, Circuit Judge.

The plaintiff in the District Court, a brakeman on the Virginian Railway Company, accidentally lost his right leg during a switching operation when in the course of his duty he attempted to uncouple certain freight cars and cut them from a train. He recovered a judgment of $10,000 in the court below, from which the railway company appealed on the ground that the injury could not be attributed to the failure of the defendant to perform any duty which it owed to its employee, but was caused either by the negligence of the plaintiff himself in going between the cars while they were in motion, or of the engineer of the train, his fellow servant, in starting the train prematurely while the plaintiff was still between the cars. The trial court held that under the evidence the plaintiff was not entitled to the benefits of the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., because he was engaged at the time as a brakeman upon an intrastate train running a distance of 18 miles between two railroad yards in the state of West Virginia. The question is not without interest, since by far the greater number of the cars in the train were intended for the shipment of coal destined from the mines of West Virginia to points outside the state; but we need not decide this question, because in our opinion there was sufficient evidence to support the judgment, even if the harsher rules of the common law of negligence are applied.

In order to separate the cars, the brakeman had to turn an angle-cock in the air line, disconnect the air line, and pull the lift lever between two of the cars. He was on the engineer's side of the train, and although it was in the nighttime, his lighted lantern could be seen from the engine. He testified that immediately before the accident, the train was backing but stopped upon his signal. Thereupon, in order to reach the coupling device, he placed his right foot inside the rail between the cars and instantly the train moved backward again without any signal from him. He tried to step back from between the cars, but the right leg of his breeches caught upon a spike or sliver on the rail and the next instant the wheel of the forward car caught his leg above the ankle. He was knocked down and pushed along, his leg under the wheel and his body outside the track, partly supported as he clung to the stirrup of the car. When he had been dragged 5 to 8 feet, his foot was caught by a projecting spike on the rail and was pulled off. In all, he was dragged 21 feet before the train stopped. It was necessary to amputate his leg 5 inches above the knee.

In addition to this testimony, another brakeman testified on plaintiff's behalf that he examined the track at the place of the accident on the night that it had happened. He noticed the bottom part of the overalls and blood at the point of injury, and saw two spikes sticking up approximately 2½ inches inside the rail. There was no blood or anything else on the first one, but there was blood on the second, 8 or 10 feet distant from the first, and there were marks inside the track as if something had been dragged along, which went as far as the second projecting spike but not beyond. Another witness for plaintiff testified that a spike was sticking up 3 to 4 inches at or near the point of the accident. The District Court held that there was sufficient evidence to submit to the jury the inquiry whether the railway company had used due care to furnish a safe place for the plaintiff to work.

The defendant concedes that there were two protruding spikes of the sort commonly used to affix the rail to the ties, but contends that the evidence shows that at the point where the plaintiff's leg was caught by the wheel, there was no protruding spike or sliver; that the nearer spike was 9 feet and the farther spike 12 feet away; that the damage was done before the first spike was reached and that contact therewith served only to cut off a foot already crushed and mangled. Hence the argument is made that the cause of the accident was not the failure of the railway company to use due care to provide a safe place to work, but the negligence of the plaintiff in going between two cars in motion, or of the engineer in starting the cars prematurely. We think that this contention cannot be sustained, for the conflicting evidence raised a jury question and furnished a sufficient basis for the conclusion that the escape of the plaintiff from his position of danger was prevented when his clothing was caught by a protruding spike. Granting that the presence of the spike between the railroad tracks was due to negligence on the part of the railway company, it is clear that the injury was due to the concurrent negligence of the railway in failing to furnish a safe place to work and of the engineer in prematurely starting the train, for in considering the contention that there was no case to submit to the jury, we must also assume, as the plaintiff testified, that the engineer carelessly started...