Tennant v. Peoria & Pekin Union Ry. Co.

• Decision Date: 13 May 1943
• Docket Number: No. 8128.,8128.
• Citation: 134 F.2d 860
• Parties: TENNANT v. PEORIA & PEKIN UNION RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

134 F.2d 860 (1943)

TENNANT v. PEORIA & PEKIN UNION RY. CO.

No. 8128.

Circuit Court of Appeals, Seventh Circuit.

March 31, 1943.

Rehearing Denied May 13, 1943.

E. E. Horton, of Peoria, Ill., for appellant.

E. V. Champion, of Peoria, Ill., Mark D. Eagleton and Wm. H. Allen, both of St. Louis, Mo., for appellee.

Before SPARKS, MAJOR, and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

This is an appeal from a judgment in favor of plaintiff, entered in accordance with a jury verdict, in an action to recover damages resulting from the death of plaintiff's intestate while in the employment of defendant.

The action was brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. The amended complaint, so far as now material, alleged that Harold C. Tennant, plaintiff's intestate, while engaged in the scope of his duties and employment as a switchman on the defendant's train, was run over and crushed by said train, from which he sustained fatal injuries. Death was alleged to have been the result of defendant's negligence in whole or in part in two respects, (1) that the defendant in moving and switching its engine and cars failed to ring a bell, in violation of Rule 30 of certain rules and regulations then in effect, and (2) that the defendant failed and omitted to exercise ordinary care to discover the whereabouts of said Harold C. Tennant and negligently moved the engine and cars at a time when his whereabouts was unknown to the members of the switching crew.

The case was submitted to the jury solely upon the first charge of negligence. So far as the record before us discloses, no request was made for submission upon the second charge, and no complaint of the court's action in this respect is shown. Notwithstanding plaintiff's contention here that the proof requires an affirmance upon each of the charges, we are of the view that the case must be decided upon the charge which was submitted to and decided by the jury.

Defendant presents a number of contested issues, the most important of which is the court's refusal to direct a verdict in response to its motion made at the close of the plaintiff's, and renewed at the close of all the proof in the case. Under this issue, defendant contends (1) that proof of negligence was not sufficient to take the case to the jury, and (2) that in any event there was a total want of proof that any negligence shown was the proximate cause of decedent's injuries. Other issues of lesser importance are presented, including alleged error in the court's charge to the jury and its refusal to give special interrogatories submitted by the defendant, and the contention that the verdict was excessive and not in accordance with law.

At the time of his injury and death on July 12, 1940, Tennant was working as a member of a switching crew in one of defendant's East Peoria (Illinois) yards, known as the "B" yard. The crew consisted of Harkless, the foreman; England, the engineer or motorman; Cole, the fireman or motorman's helper; and two switchmen, Tennant and Bonner. Tennant, sometimes referred to as the "pin puller," was the switchman who followed the engine and Bonner was the field man. Tennant had been employed in this same capacity on the same crew for a number of months, and in the same yards for about four years. The crew went on duty at eleven o'clock at night and off at seven o'clock in the morning. One of the jobs which this crew performed regularly each night, and the one which it was engaged in performing on the night of the fatal occurrence, was the removal of cars from track B-28. In so doing, after certain other switching had been done, the engine (a Diesel, electrically operated) was brought down from the north through divide switch B-28 and onto track B-28. The front or pilot end of the engine was headed south. B-28 track south of B-28 switch was a straight track, extending substantially north and south. At this time there were twenty cars, in different groups, on this track. The job to be performed was the coupling together of these cars and moving them northwardly out of this track to assigned locations in the yards.

The brief for each side contains a lengthy statement of the circumstances surrounding the decedent's death. Inasmuch as the proof must be considered in the light most favorable to the plaintiff, we adopt her statement as to what occurred at and shortly prior to the time of the accident. As the engine moved south on track B-28, the engineer was in his cab on the right side (west side), the fireman in his cab on the opposite side, Tennant was riding on the right front footboard of the engine (on the engineer's side), and Harkless and Bonner had gone ahead, southwardly, down the track on the engineer's side. Harkless marked the empties and the loads and Bonner released the car brakes. Bonner made all the couplings except the first, that is, the coupling between the engine and the first car, which was made by Tennant. The engine was moved on signal from Bonner from time to time until the cars had all been coupled. It was dark and the signals were given by lantern. During this coupling work, the engine had stopped and started some six or eight times. When the coupling had been finished, Harkless and Bonner were at the south end of the train on the engineer's side. Harkless gave the engineer a back-up signal, which meant that the engineer was to back northwardly and pull the cars out of track B-28. At that time, neither Harkless nor Bonner saw Tennant's light. The engineer, in response to Harkless' signal, put his engine in motion, backing it and pulling the cars northwardly. No bell was rung for this or any of the other movements had in the operation which took place on track B-28.

"England, the engineer, was the last man to see Tennant alive. He testified that when he had made the last southward movement in coupling up the cars on track B-28 Tennant was standing alongside of the engineer's cab, on the west side of the track, putting his raincoat under the cab in a compartment there; that it had been raining that night, and that when Tennant put his raincoat in this compartment he got out his cap and jacket and put them on and then walked around to the north or rear of the engine, and that was the last the engineer saw of him. England testified that when Tennant passed around the engine, out of his vision, the engine was five or six car lengths south of divide B-28 switch; a car being about forty feet long. He said he stood there five or ten minutes, waiting for a signal, and when he got the back-up signal from the rear end he backed up and kept on backing all the way out upon the lead. He said he pulled the cars out on the middle lead, or Nickel Plate lead, far enough so that the rear end of the train would clear No. 41 switch, the next operation being for someone to throw No. 41 switch so that he could go back down the track after getting a signal for the movement; that he expected to get a signal from Tennant at that point but did not get it. He said this was the regular routine of work every night; that Tennant, when on the job, after making the first coupling would walk around the north end of the engine as he did on this occasion; that the foreman would give the signal to back up and pull up on the lead, and then the foreman and field man would cut across to the hammer track to line some switches there and he would back up on the lead and Tennant would finally show up at the B-41 switch and give him a signal to come ahead through that switch.

"England further testified that on the night of July 12, 1940, when he got the back-up signal on track B-28 and began to back up, he did not ring the bell; did not ring it until he `got down to the crossing.' He said he did not know where Tennant was when he started the engine; that when he received this back-up signal he was looking forward, to the south, and he could have seen anyone on the front footboard, but did not see Tennant; that he could not see any one on the back footboard.

"The train backed up some fifty car lengths, out of track B-28 onto the lead track, moving north and west into another part of the yard, and stopped on the lead beyond switch No. 41 and there waited a while before it was discovered that Tennant was missing. Harkless and Bonner had ridden a distance up track B-28, each on a car of the train, and had then proceeded west across to the repair track to line switches. When the train did not return Harkless walked up the lead track on which it was standing until he reached the engine, and asked the engineer where Tennant was, and the engineer told him he did not know. Harkless then threw the switch to go back from the lead into track B-28, saying they would look for Tennant. The engine was thereupon disconnected from the cars and proceeded back into and southwardly on track B-28. It first had to go in an easterly direction and then to the south. On its return trip the engine went about fifteen car lengths before Tennant's body was discovered. His body, except for his head and right hand, was found at the B-28 divide switch, on the outside of the west rail of track B-28, right at the switch. His head and right hand were missing. The engine was stopped seven or eight feet north of the body. Members of the crew then walked southwardly and found Tennant's lantern, still lighted, and his right hand, his cap and a large pool of blood about seven or eight car lengths south of the point where his torso had been found. The pool of blood was close to the west rail of the track, a few feet away from the lantern, right hand and cap. The place where the hand, cap, lantern and pool of blood were found was about the place where the engine had stopped in coupling up track B-28. That is, it was about the farthest point south that the engine had been in doing the coupling work mentioned, all movements of the engine after that being to the north and northwest. The crew then went back...