Lehigh & NER Co. v. Smale

• Decision Date: 27 April 1927
• Docket Number: No. 3582.,3582.
• Citation: 19 F.2d 67
• Court: U.S. Court of Appeals — Third Circuit
• Parties: LEHIGH & N. E. R. CO. v. SMALE.

19 F.2d 67 (1927)

LEHIGH & N. E. R. CO. v. SMALE.

No. 3582.

Circuit Court of Appeals, Third Circuit.

April 27, 1927.

William V. Lee and Edward L. Katzenbach, both of Trenton, N. J., for plaintiff in error.

Charles A. Ludlow and Ralph W. Botham, both of New York City, for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

BUFFINGTON, Circuit Judge.

While Russell R. Smale, hereafter called plaintiff, was engaged as a brakeman in the interstate commerce work of the Lehigh & New England Railroad Company, hereafter called defendant, he was injured by reason, as alleged, of the appliances of the defendant on one of its locomotives, which failed to comply with the requirements of the Interstate Commerce Commission. He recovered a verdict, and on entry of judgment this writ of error was sued out by defendant.

Briefly stated, the pertinent facts are these: While the train was in motion, Smale, who was head brakeman, having in view aiding in a train movement in the line of his duty, went to the front of the engine in question and descended on steps fastened to the crossbeam at the front of the engine. In order to do so safely, it is obvious that he required support of handholds, and the requirements of the Interstate Commerce Commission in that regard are quoted in the margin.¹

In compliance with its statutory duty, the railroad placed a wrought iron handhold of the proper thickness securely bolted with a crossbeam; but it was alleged, and around this the controversy centers, that such handhold did not have the clear minimum clearance length of the 14 inches required, in that at its top there was placed a flag-holding device, which presented a split at its outer end. When Smale, in endeavoring to make the descent, reached for this handhold, he placed his hand on the top of the handhold and over this flag-holding device, and his glove caught in the split. When he let loose the detention of the glove pulled him around, and he fell, and his leg was run over. It was contended that the distance between the lower part of this flag-holding device and the base of the stem was less than the minimum clear length of 14 inches provided by the order, and whether this upright gave the statutory clearance was left by the court to the jury to decide. In view of the fact, as we see it, that the court itself well have said that such clearance was not provided, we find no error in the court's action in submitting it to the jury, or the jury's...