Montgomery v. Baltimore & OR Co.

• Decision Date: 15 November 1927
• Docket Number: No. 4825.,4825.
• Citation: 22 F.2d 359
• Parties: MONTGOMERY v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

22 F.2d 359 (1927)

MONTGOMERY v. BALTIMORE & O. R. CO.

No. 4825.

Circuit Court of Appeals, Sixth Circuit.

November 15, 1927.

Benjamin F. Levin, of Cleveland, Ohio, and D. F. Anderson, of Youngstown, Ohio (Louis H. Winch, of Cleveland, Ohio, on the brief), for plaintiff in error.

W. T. Kinder, of Cleveland, Ohio (Tolles, Hogsett & Ginn and Thos. O. Nevison, all of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON and MOORMAN, Circuit Judges, and RAYMOND, District Judge.

DENISON, Circuit Judge.

The plaintiff was a locomotive fireman, who was hurt in the course of his employment, and brought this suit. Jurisdiction is claimed under the Employers' Liability Act, 45 USCA §§ 51-59 Comp. St. §§ 8657-8665), and is not disputed. When the tender was to be filled with coal, its front towards the engine was closed by two doors, which, when open, swung inwardly against the sides of the tender and were there fastened. After the fireman had taken from the shovel sheet the coal which would naturally fall thereon, he might find it necessary to open these doors and knock down more coal in position for shoveling to the furnace. When enough coal was removed, he would open the doors and fasten them back. On this occasion, according to his testimony, he had opened the doors to knock down some coal that had lodged so it would not fall on the shovel sheet, and he had not fastened them back, because not enough coal had been removed from behind them to permit them to be fully opened. While he was thus engaged, and was so located that he and the engineer could not see each other, the engine started with a jar, which swung the doors together, catching and injuring his hand and arm. The trial court directed a verdict for defendant, on the grounds that the proximate cause of the injury was plaintiff's own negligence in leaving the doors unfastened, and that he assumed the risk arising from the situation.

The substantial complaint as to negligence is that the engine was started without warning. This act either was or was not negligent. If it was, we are clear that plaintiff's conduct in leaving the gates open, if negligence on his part, was only contributory, and cannot be said to be the sole proximate cause of the injury. The starting of the engine, which caused the doors to swing, as they otherwise would not, and the unfastened condition of the doors, which permitted them to swing, as they otherwise would not, seem to us to be concurring causes of the injury.

We think there was substantial basis from which the jury might infer that the starting of the engine without any warning was an act of negligence as against plaintiff. Rule 30 of the operating department is as follows: "The bell will be rung when an engine is about to move; while...