Chicago & NW Ry. Co. v. Kelly

• Decision Date: 12 November 1934
• Docket Number: No. 9929.,9929.
• Parties: CHICAGO & N. W. RY. CO. v. KELLY.
• Court: U.S. Court of Appeals — Eighth Circuit

74 F.2d 31 (1934)

CHICAGO & N. W. RY. CO. v. KELLY.

No. 9929.

Circuit Court of Appeals, Eighth Circuit.

November 12, 1934.

Alfred E. Rietz, of St. Paul, Minn. (William T. Faricy, of Chicago, Ill., and Warren

Newcome, of St. Paul, Minn., on the brief), for appellant.

Ernest A. Michel, of Minneapolis, Minn. (Tom Davis and Carl L. Yaeger, both of Minneapolis, Minn., on the brief), for appellee.

Before STONE, Circuit Judge, and JOYCE and BELL, District Judges.

BELL, District Judge.

Action by Paul C. Kelly, appellee, against the Chicago & North Western Railway Company, appellant, for damages resulting from personal injuries. From a judgment on a verdict for appellee, this appeal was taken.

The appellant presents four grounds for reversal: (1) Insufficiency of the evidence, (2) misconduct relative to appellee's domestic status, (3) misconduct of counsel in closing argument, and (4) excessiveness of the verdict.

Insufficiency of the Evidence.

The appellant vigorously contends that the evidence was insufficient to justify submission of the case to the jury, and, therefore, that its motion to direct a verdict should have been sustained; consequently, a comprehensive statement of the facts is necessary.

It is undisputed that the appellee was employed by appellant as a brakeman and that at the time of the accident both were engaged in interstate commerce; that appellee was working on a freight train of sixty-six cars on a run from Council Bluffs to Boone, Iowa; that on arriving at Carroll, Iowa, on the morning of October 24, 1932, while the train was moving very slowly in an easterly direction, he dismounted from the engine on the south side for the purpose of uncoupling the train between the third and fourth cars from the engine so as to set out the three head cars; and that in some manner his left leg was caught under the wheels of the fourth car, was crushed, and amputation seven or eight inches below the knee followed.

There is a dispute as to the manner in which the accident occurred. The appellant contends that the appellee, in violation of the rules and regulations of the company, went between the cars while the train was in motion, was struck and thrown beneath the wheels and injured. The appellee contends that as the third car was passing, it became apparent that the train would not stop so that the coupling between the cars mentioned would be near at hand and that he therefore, in accordance with his duties and the practice in railroading, undertook to board the third car so as to dismount when the train stopped and be at the proper place to make the uncoupling; that in attempting to board the car he placed his right foot in the stirrup and simultaneously caught the handhold on the south side of the car at the west end; that the handhold was loose at one end, gave way, and that he was thereby thrown between the cars and under the wheels as a result of which he was injured. Several witnesses, in ten to twenty minutes after the accident, saw the handhold hanging perpendicularly by the rear fastening bolt. The nut was off the bolt at the forward end and the other end was slightly loose. The explanation of the appellant of this condition was that one Hosler, engineer on a nearby switch engine, immediately after the accident, deliberately removed the nut at the forward end of the handhold and loosened the nut at the other end. Hosler died prior to the trial.

Appellant contends that the evidence shows conclusively that the handhold was in good condition until after the accident. In support of this contention it presented testimony that the car was inspected at Omaha, Neb., the day before, and again at Missouri Valley, Iowa, the night of the accident. Bolitho testified that he used the same handhold that night at Missouri Valley which is seventy-two miles west of Carroll and that it was not loose then. There was evidence that the nut had been riveted on the bolt.

Appellant further contends that the defective condition in which the handhold was found was due to the removal of one nut and the loosening of the other after the accident. This is supported by testimony of witnesses Hall, working foreman in appellant's car repair shop at Carroll, and Hanson, master car builder. Hall made three inspections of the car on the morning of the accident and was accompanied on the third inspection by Hanson and Peterson, the yardmaster. At this time the car was thoroughly inspected and an unsuccessful search at the place of the accident was made for the missing nut. An examination of a nearby tool box was made for a tool that would fit the nut, but none was found. They then went to the roundhouse and examined the switch engine to see if there were indications of it having been in an accident, but none were found. However, in the tool box on the engineer's side of the cab, a large adjustable monkey wrench was discovered. This wrench was so adjusted as to fit the missing nut. On the front jaws of the wrench were indications of paint of the kind on the car. Fresh marks indicating that the nut had been turned were discovered on the foot of the handhold where the nut was missing. The paint immediately back of the forward end of the handhold had been disturbed and there was no evidence that the handhold had shaken up and down. The nut at the rear end of the handhold was loosened two or three threads. The paint on this nut bore such marks as are made by the application of a wrench. An opinion was given that the bolt at the forward end had been riveted so that the nut could not have shaken off and could not have been removed without the application of considerable force. Such was the evidence to show that Hosler, after the accident, had the opportunity to and did remove the nut. According to the testimony not one of the many witnesses, who reached the scene of the accident in a comparatively few minutes after it happened, saw Hosler remove the nut.

There was substantial evidence from which the jury might have concluded that if Hosler removed the nut, he did it in the presence of others. Within twenty minutes after the accident, eight persons appeared on the scene; Beshey, a trespasser who had been riding on the train; Hosler, engineer of the switch engine; Case, engineer on the train; Huddleston, the fireman; Bolitho, rear brakeman; Masterson, the conductor; Oliver, fireman on the switch engine; and Daley, foreman of the switching crew. Other witnesses appeared later.

The testimony of the appellee and of a number of the witnesses for appellant is illuminating in this connection. The appellee stated that he called for help and tried to signal the members of the train crew with his lantern. Day was just breaking. Beshey, who had been riding between the first and second cars at the head of the train, was the first to come and appellee requested him to get the engineer of the train. After he sent Beshey for help, "it was not over a minute and a half until the engineer of the switch engine and my own engineer and fireman were right there; one came right behind the other." He further testified, "After the accident the first man that came to me was unknown to me. The first employee that came to me was Gene Hosler, the engineer of the switch engine. The next men were Fred Case and Guy Huddleston, — they came right together, as I remember. The time that elapsed between the time Mr. Hosler came and Fred Case and Guy Huddleston came, I would say was perhaps thirty seconds. It seems like they came right together." Beshey testified that when he saw appellee fall two car lengths away he got down from the car and ran toward him; that he then called for help and ran toward the engine of the train; that he returned and a man whom he did not know (Hosler) came over to appellee, stooped down, and talked to him. Appellee testified that when Hosler came he said, "Good God, Paul, how did this happen?" and that he (appellee) replied, "The grabiron on the car let loose, throwing me under the wheels." Several witnesses testified that appellee made a similar statement to them immediately on their arrival after the accident.

Engineer Case was not called as a witness, nor was the failure to do so explained. Huddleston stated that he heard about the accident in three to five minutes after the train stopped and went with Case to see appellee; that when he got there Beshey was with him; that he went toward the rear of the train and fifteen or twenty cars back he met Bolitho and told him what had occurred; that he went some distance further to the rear, met Masterson, and returned with him and found Bolitho with the appellee; that he examined the car and saw the handhold hanging from the rear bolt. When Bolitho reached appellee, Case was there but Hosler was not. Masterson said that when he arrived Case was there but Hosler was not present. He also saw the handhold hanging by one end.

The testimony of the switch engine crew is significant. The switch engine was standing near the engine on the train and at least five car lengths from where appellee lay. Oliver, the fireman, stated that he was on the engine when Hosler got off and left it; that Hosler returned in twelve to fifteen minutes and told him of the accident; that he then went to see appellee; and that when he returned to his engine eight or ten minutes later Hosler was there. Dyer of the switching crew stated that Hosler called to him and told him of the accident and that he went within twelve to fifteen feet of appellee; then waited four or five minutes when Daley came and together they went to where appellee lay. Bolitho was there at that time. Dyer returned to the switch engine and both Hosler and Oliver were there. Appellee and Hosler were acquaintances but had never visited each other and were not intimate friends.

All of the witnesses enumerated above, except appellee, were placed on the stand by appellant. The handhold, the bolt and nut from the rear end thereof, and the bolt from...