Atchison, T. & SF Ry. Co. v. Keddy

• Decision Date: 05 November 1928
• Docket Number: No. 5567.,5567.
• Parties: ATCHISON, T. & S. F. RY. CO. v. KEDDY.
• Court: U.S. Court of Appeals — Ninth Circuit

28 F.2d 952 (1928)

ATCHISON, T. & S. F. RY. CO. v. KEDDY.^*

No. 5567.

Circuit Court of Appeals, Ninth Circuit.

November 5, 1928.

Robert Brennan, M. W. Reed, Leo E. Sievert, and E. T. Lucey, all of Los Angeles, Cal., for appellant.

Paul Blackwood, of Los Angeles, Cal., for appellee.

Before GILBERT, RUDKIN, and DIETRICH, Circuit Judges.

GILBERT, Circuit Judge.

The defendant in error, as plaintiff below, recovered a judgment for injuries sustained by him while engaged in coupling cars of a freight train on which he was head brakeman. He was charged with the duty of attending to the switching operations of the train at the station of Atwood. He first opened a switch whereby the engine was brought to a water-spout for water. The conductor then entered the station to get his train orders, and, returning, directed that the rear portion of the train be cut off, and that the remaining 24 cars, with the engine, proceed easterly until they were on a designated main line. The plaintiff, therefore, cut off all but the foremost 9 cars. The next operation was for the engine to move easterly and set 8 of the 9 cars on another track, after which the engine, with the remaining one car, was to return and couple on the cars left standing on said main line. But after the plaintiff had cut off the 9 cars attached to the engine, and was adjusting a defective knuckle on the east end of the cars remaining on said main line, the engine with the 9 cars attached thereto, after proceeding eastward a short distance, came back, without signal, against the car where the plaintiff was so engaged, and caught his hand between the drawbars. He alleged in his complaint that the proximate cause of the accident was the negligence of the defendant in backing the cars as aforesaid, and in negligently using an old, defective, and unsound drawbar knuckle, to operate which required the plaintiff to go between said cars.

The defendant assigns error to the denial of its motion for an instructed verdict in its favor, based on the grounds that the evidence was insufficient to show negligence, that the accident did not result from the performance of any duty devolving upon the plaintiff, that he assumed the risk of the accident and was guilty of negligence and recklessness, and that there was no evidence to show a violation of the Safety Appliance Act. We think there was clearly sufficient evidence to go to the jury on the question of negligence in the operation of the portion of the train which came back upon plaintiff while he was engaged in attempting to adjust the coupling. The contention of defendant is that the backward movement of the cars was but for the purpose of taking up the slack, and the engineer, it is true, testified that it was not the custom to give a signal before backing a train sufficiently far to take up the slack; but the decided weight of the testimony was that there was no slack, that the cars attached to the engine stood on a track that was slightly upgrade, and the testimony of the plaintiff, supported by others, was that after making the cut the plaintiff gave the engineer a signal to go forward, and that the latter answered the signal and went forward, and had proceeded a distance considerably greater than any possible slack that could have existed in that number of cars. The plaintiff testified: "I say, any time the engineer wants to back up without a signal, he must blow the signal three times, and then before he backs up receive a signal from me or one of the trainmen. That applies if he wants to back up a couple of feet to get the slack to go forward. It applies any time." That testimony was corroborated by a witness who had worked as engineer and fireman for the defendant for nine or ten years.

The defendant stresses the contention that at the time of the accident the plaintiff was not engaged in coupling cars, but was engaged in doing an unnecessary act, and was voluntarily assuming the risk of prematurely preparing a coupler, so that thereafter it would couple automatically by impact, and that the defective coupler was not the proximate cause of the accident, thus invoking the rule that, if the failure to comply with the requirements of the Safety Appliance Act (45 USCA § 1 et seq.) is not the proximate cause of the accident, but merely creates an incidental condition or situation in which the accident otherwise caused results in injury, the employee cannot recover. Davis v. Wolfe, 263 U. S. 239, 44 S. Ct. 64, 68 L. Ed. 284. But, as we take the law to be, there was evidence that at the time of the accident the plaintiff was engaged in a coupling operation, in this: That he was preparing what he testified to be a defective coupling appliance, in order to accomplish quickly the coupling operation by impact when the engine and its accompanying cars should return for that purpose, and that his object was to avoid loss of time, and thus comply with the defendant's posted rules, which held employees to strict account for delays to trains resulting from bad management on their part. The rule contained the following provision: "Promptness and dispatch are earnestly enjoined in transacting business at stations, taking water, oiling, etc. Station work should, when possible, be done immediately on arrival."

The plaintiff's testimony that the work which he was engaged in performing was in the regular course of the operation of the train and a part of his duty was corroborated by several other employees. Green, a brakeman and switchman, testified: "That is always done in practical railroading, by men operating trains of that character, in that place. He would leave the knuckle open on the fourteenth car, on the east car, that he was leaving there on the track, so he could couple in when he came back." Couse, formerly a brakeman for defendant, testified: "The necessity of opening that knuckle on this eleventh car is so that they will couple automatically by impact when you are coming back, without having to stop your train." There was testimony of other employees to the same effect, including the conductor, Metzgar, who said: "It is the custom, if you are going back to pick up cars, to leave the knuckle open."

The plaintiff testified that, after making the cut of the train, he had other duties to perform in connection with the cut; that he had to leave the knuckle open on the forward car on the main line, "because that was the duty of the man that makes the cut to leave that open, so that on our return from the main track we could couple onto it automatically." And he said that the reason for that course was that, if he failed to open the knuckle at that time, he would have to stop the engineer on the return, and then go ahead and operate the knuckle, and then return and give them the back-up signal to come along, which, he said, "would have consumed valuable minutes." He testified that he crossed over to the other side, the south side, and tried to open the knuckle; that he went over there to operate the pin lifter, because it was over on that side; that he then jerked on that lever three or four times, and tried to open the knuckle, but could not open it;...