Baltimore & OR Co. v. Tittle

• Citation: 4 F.2d 818
• Decision Date: 10 April 1925
• Docket Number: No. 4230.,4230.
• Parties: BALTIMORE & O. R. CO. v. TITTLE.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

4 F.2d 818 (1925)

BALTIMORE & O. R. CO. v. TITTLE.

No. 4230.

Circuit Court of Appeals, Sixth Circuit.

April 10, 1925.

W. T. Kinder, of Cleveland, Ohio (Tolles, Hogsett, Ginn & Morley and J. W. Reavis, all of Cleveland, Ohio, on the brief), for plaintiff in error.

Edward Davidson, of Cleveland, Ohio, for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

MOORMAN, Circuit Judge.

The parties to this proceeding will be designated as in the District Court, where plaintiff recovered damages for personal injury sustained by him on October 6, 1923, while employed by defendant as a switchman. Errors assigned and argued are: First, the case was treated, in the charge to the jury, as within the provisions of the Safety Appliance Act (Comp. St. §§ 8605-8612); second, the jury should have been directed to return a verdict for defendant, because the evidence affirmatively showed that its negligence was not the proximate cause of the injury; third, the refusal to charge that plaintiff was not entitled to recover if his act, whether negligent or not, was the sole and proximate cause of the injury.

Plaintiff was a member of a switching crew, whose immediate duty was to couple a switch engine to some cars standing on a side track in the yards of the defendant at Cleveland, and to detach six of them from the main cut and remove them to another point. The engine was coupled to the lead car, and plaintiff uncoupled the sixth car from the one next to it, but when the engine moved only two of the cars were carried with it. After two unsuccessful attempts to couple the second and third cars by impact, the plaintiff went to the point where those cars were to make the coupling, and while attempting to adjust the coupler on the third car the knuckle fell on his foot, causing the injury of which he complains.

The conditions under which the injury occurred, from plaintiff's standpoint, are disclosed by his testimony alone. It shows in substance that, after the two attempts had been made to couple the cars, the conductor ordered plaintiff to make the coupling. When he got to the third car, he observed that the knuckle was half open and the knuckle lock completely down in the coupler. He made an unsuccessful attempt to open the knuckle by lifting the lever at the end of the car, and then proceeded to the coupler for the purpose of adjusting the knuckle, so it would make the coupling, thinking that the coupler was jammed. He pulled out the knuckle pin to loosen the knuckle — "either kick it with my foot or shake it with my hand in order to get it out of jam," but upon taking out the pin the knuckle fell. The lip of the knuckle was broken, but for which it would not have fallen. The witness testified that, in examining the knuckle, he did not discover the break, which was not visible with the knuckle only half open.

The evidence for the defendant corroborated plaintiff as to an unbroken knuckle not falling upon the removal of the knuckle pin. It, however, tended to show that, with the knuckle half open the break was plainly to be seen; that if the knuckle was partially open, and the knuckle lock down, plaintiff should have known there was a break in the knuckle; and, further, it was apparent from the break that, if the knuckle pin was taken out, the lock would not hold, and the knuckle would fall. The conductor testified that he did not order plaintiff to make the coupling.

Section 2 of the Safety Appliance Act (Comp. St. § 8606) reads: "On and after the first day of January, eighteen hundred and ninety-eight, it shall be unlawful for any such common carrier 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 going between the ends of the cars." It is the contention of defendant that the sole purpose of this provision is to protect the employé from injury resulting from his presence between cars when brought in contact to effect a coupling, and that it was not intended to protect employés engaged in repairing defective couplers which, as it asserts, was what plaint...