Norfolk & W. Ry. Co. v. Collingsworth

• Decision Date: 09 October 1931
• Docket Number: No. 5741.,5741.
• Citation: 52 F.2d 827
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: NORFOLK & W. RY. CO. v. COLLINGSWORTH.

52 F.2d 827 (1931)

NORFOLK & W. RY. CO. v. COLLINGSWORTH.

No. 5741.

Circuit Court of Appeals, Sixth Circuit.

October 9, 1931.

J. I. Boulger, of Columbus, Ohio (Henry Bannon, of Portsmouth, Ohio, on the brief), for appellant.

R. B. Newcomb, of Cleveland, Ohio (Pugh & Pugh, of Columbus, Ohio, and Newcomb, Newcomb & Nord, of Cleveland, Ohio, on the brief), for appellee.

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

MOORMAN, Circuit Judge.

The judgment for plaintiff on the first trial of this case was reversed on the ground that the motion for a directed verdict for the defendant should have been sustained. (C. C. A.) 32 F.(2d) 561. Upon the retrial the case was submitted to the jury upon questions relating to defendant's duty to have a white light on the leading car both under and independently of rule 24. The jury returned a verdict for plaintiff, upon which judgment was entered.

On the former appeal we held, on the record there presented, that it was not the duty of defendant, under rule 24, to display a white light "on the end of the leading car." Much of the evidence upon which plaintiff relies on this appeal is the same as that on the former. The additional evidence in our opinion does not show that the conclusion then reached was incorrect. The cars were being shifted from one part of the yard to another to be put in a train. They were in charge of a crew which was engaged exclusively in switching cars in the yard. Furthermore, the plaintiff alleged and reiterated in his petition that at the time of injury defendant was "switching and moving said cars." All the witnesses admit that shifting includes switching, and the statements of the new witnesses that this was not a shifting or switching movement are mere conclusions of the witnesses, not based on facts nor, as shown on cross-examination, supported by reason. Such testimony cannot be said to present this aspect of the case in a different light from that presented on the former hearing.

The other question submitted to the jury related to the duty of defendant, according to custom, to have a brakeman "with a lighted lantern at the forward end of a car or cut of cars being pushed." This question, in a somewhat different form, was referred to in the former opinion. It is not claimed by plaintiff that there was any practice or custom to have a man standing at the front end of the car, on the coupler, but that it was customary to have him on the leading car sufficiently close to the end for his light to be seen by those working on the tracks. The plaintiff testified on this trial as on the former, that some one, probably the yard foreman, in telling him that he would not need a lantern, told him to look for "the light of the engine switchman" or "for the light on the head end of the leading car," and up to that time he had always got it. Brinkley testified that the "lantern is usually found on the front cut," and that "the safe part of riding a box car is to get in the middle of the car so that if a quick stop is...