Chesapeake & O. Ry. Co. v. Cochran

• Decision Date: 21 October 1927
• Docket Number: No. 2636.,2636.
• Citation: 22 F.2d 22
• Parties: CHESAPEAKE & O. RY. CO. v. COCHRAN.
• Court: U.S. Court of Appeals — Fourth Circuit

22 F.2d 22 (1927)

CHESAPEAKE & O. RY. CO. v. COCHRAN.

No. 2636.

Circuit Court of Appeals, Fourth Circuit.

October 21, 1927.

C. W. Strickling, of Huntington, W. Va. (C. N. Davis, of Huntington, W. Va., on the brief), for plaintiff in error.

B. J. Pettigrew, of Charleston, W. Va. (C. L. Lilly, of Beckley, W. Va., on the brief), for defendant in error.

Before PARKER, Circuit Judge, and SOPER and ERNEST F. COCHRAN, District Judges.

ERNEST F. COCHRAN, District Judge.

This is an action instituted in the circuit court of Raleigh county, W. Va., by Lottie Cochran, administratrix of the estate of Clyde Cochran, deceased, against the Chesapeake & Ohio Railway Company, to recover damages for the death of her intestate, due to the alleged negligence of the railway company. The case was removed to the United States District Court for the Southern District of West Virginia, and a trial before a jury resulted in a verdict and judgment for the plaintiff for $10,000, and the railway company has brought the case by writ of error to this court. The plaintiff in error was the defendant, and the defendant in error the plaintiff, in the District Court, and the parties will be referred to as they appeared in that court.

By the assignments of error, the defendant presents the following propositions: (1) That the evidence shows that as a matter of law the defendant was not negligent; (2) that as a matter of law the plaintiff's decedent was guilty of contributory negligence; (3) that the plaintiff's decedent assumed the risk of the injury received by him which resulted in his death; (4) that the court's charge to the jury in effect made the railway company an insurer of its appliances; (5) that the court erred in allowing the jury to say whether or not there was a duty on the part of the railway company to give information or instruction how the particular brake device in question should be used. There was evidence either establishing or tending to establish the following facts:

Baltimore, Rochester & Pittsburgh Railway car No. 18911 was loaded on the tracks of the Baltimore & Ohio Railroad Company, at Huntington, W. Va., with steel rails, and by that company delivered to the Chesapeake & Ohio Railway Company at Huntington for transportation to the mines of the Raleigh Coal & Coke Company, Raleigh, W. Va. Clyde Cochran, the deceased, was an employee of the coal company. The car was placed for unloading above the tipple of one of the mines of the coal company, the consignee, on a side track used in connection with the mine, which extended from and through the tipple to a point several hundred feet above it. This side track was on a grade of from 2 to 3 per cent. Eight days after the placement of the car, the deceased, together with Charles Webb, another employee of the coal company, was sent by the mine superintendent to drop the car down to a point above the tipple by gravitation. Webb was the regular car dropper at that mine, whose duty it was to drop empty cars, as well as cars loaded with mine supplies, down to the tipple for use at the mine. The deceased was regularly employed in the repair shop of the mine; but sometimes, when necessity arose, he assisted in dropping cars. These two men were in charge of Claude Wilburn, who was a sort of under superintendent, in charge of the crew and cars at the drift mouth of the mine. The car was standing at least 200 feet above the tipple on an inclined track, with a "chock" or scotch under one of the front wheels.

When the three men reached the car (there is some conflict in the evidence as to whether all three went together or whether after Wilburn and the deceased got to the car, Webb was called from the tipple by Wilburn to drop the car), Wilburn, in charge of the men, asked Webb, the regular car dropper, who was on the front end of the car as it would move toward the tipple, where the only brake on it was located, whether he was ready, after which Wilburn knocked the "chock" from under the wheel with a bar, which started the car rolling. When the car started, the deceased and Wilburn caught the stirrups on the rear; the deceased climbed over the rails with which the car was loaded, to the front end, where Webb was working at the brake, while Wilburn remained at the rear. Webb, with one foot inside the car and the other on the end sill, attempted to work the brake, but failed to make it work. When Webb's efforts in attempting to work the brake had no effect on the speed of the car, the deceased said, "Maybe I can work it;" and Webb said, "I don't know whether you can or not. I don't expect you can." The deceased, then standing with both feet inside the car, tried to work the brake; but the car continued to roll on toward the tipple, where coal cars were standing on the track.

When Wilburn saw the car was getting away, he jumped off. After Webb abandoned his efforts to work the brake, he told the deceased that the brake was no good, and that it was no use to fool with it; but the deceased continued to try to operate it. The car rolled on, struck an empty car, which threw the rails with which it was loaded against the legs of the deceased and pinned him inside the car, and the two cars, running together, went on and struck a car loaded with coal, which stopped both cars and mashed the legs of the deceased so badly that he died in the hospital next day as the result of his injuries. Webb testified that, when he saw he could not do anything with the brake, he got out and hung on the stirrup, and jumped off just before the car struck the empty car. When this occurred, the deceased was still inside the car, attempting to operate the brake. The type of brake with which the car was equipped was an unusual one for the locality where the deceased was employed. Webb, however, testified that he was familiar with its use, and understood how to operate it.

The defendant contended that the car was in good condition when it was delivered by the railway company to the employer of the deceased, and that the accident was caused by the failure of the employees of the coal company to operate it properly; in other words, that the accident was caused by their negligence, proceeding either from mere carelessness or from reckless attempt to operate a device that they did not understand. Evidence in support of this theory was given, not only in a somewhat negative form by certain employees of the company whose duty it was to inspect the car prior to the accident, but also in direct and positive form by employees of the railway company who examined the car after the accident. There was, however, positive testimony that the car began to roll immediately when the "chock" was removed, and that the brake did not work properly when Webb tried it, although he testified that he was familiar with its operation. It appears that to operate this brake properly it was necessary to throw a certain "weight" on the sill of the car, so that a certain "dog" or latch would engage the teeth on the underside of the sill ratchet of the brake; and the defendant lays much stress on the fact that Webb did not testify positively that either he or the deceased set the "dog" properly when trying to operate the brake.

But while the witnesses were questioned at length as to what they did, the defendant's attorney never asked any of them the specific question whether the "dog" was properly set or not. There was also evidence for the plaintiff that, two days after the accident, the brake was examined and tried, and would not operate properly, because, as stated by the witnesses in their testimony, there was too much slack in the chain, the effect of which was that, when the brake was wound as tightly as it could be wound, the shoe would remain loose, and not make proper contact with the wheel. There was evidence on the part of the defendant that the car, before arriving at the mines, had been inspected at several points, and no defects found in the brake. There was evidence given for the defendant, also, to the effect that the day after the accident the car was placed on the same incline and that the brake held the car. The plaintiff's witnesses testified that, when this was done, the car was coupled to other cars, which held it in place; but this was denied by defendant's witnesses.

The law applicable to this case has been settled by this court in the case of Waldron v. Director General. In that case, this court, speaking through the late Judge Woods, said:

"A carrier, furnishing cars to be loaded for shipment, is liable for injuries to the shipper or his employé, due to a defect in the car which might have been discovered by reasonable care in inspection. The carrier cannot impose this duty to furnish cars reasonably safe on the shipper, to its own relief from liability for injuries to an employé of the shipper. If the carrier is negligent in furnishing a defective car to the shipper, and the shipper in turn is negligent in furnishing it to his employé to be loaded, the carrier and shipper are both liable to the injured employé; for the proximate cause of the injury is the defective car. But as between the carrier and the shipper the liability of the carrier is primary, for the reason that the shipper has a right to assume that cars furnished have been inspected by the carrier and found reasonably safe. While neither the shipper nor his employé owe any duty to the carrier to search for defects, the use of a car obviously so defective as to be dangerous would be either assumption of risk or contributory negligence, according to the circumstances on the part of the person operating it. * * * There was evidence that the railroad company furnished a car with a seriously defective brake, knowing that the brake would be depended on to hold the car loaded with coal on a steep grade, and that the defect in the brake was the proximate cause of the accident. If nothing else appeared, the liability of the railroad company would...