Auchenbach v. Philadelphia & R. Ry. Co., 3162.

• Decision Date: 29 September 1925
• Docket Number: No. 3162.,3162.
• Citation: 8 F.2d 350
• Parties: AUCHENBACH v. PHILADELPHIA & R. RY. CO.
• Court: U.S. Court of Appeals — Third Circuit

8 F.2d 350 (1925)

AUCHENBACH v. PHILADELPHIA & R. RY. CO.

No. 3162.

Circuit Court of Appeals, Third Circuit.

September 29, 1925.

Samuel Schneider, of Weehawken, N. J. (Humphrey J. Lynch, of White Plains, N. Y., of counsel), for plaintiff in error.

Edward L. Katzenbach (of Katzenbach & Hunt), of Trenton, N. J., for defendant in error.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge.

At the conclusion of the evidence in this case, the trial judge directed a verdict for the Philadelphia & Reading Railway Company, defendant, on the ground that it was not guilty of negligence, and that the proximate cause of the accident was due to the plaintiff's own negligence in going between two cars in a careless and negligent manner.

The plaintiff had been employed by defendant as a brakeman for about 2 years and 7 months. On the night in question he was acting as conductor. His train had brought 12 or 13 cars from Front street, Philadelphia, to the Broad street yard, where it had stopped on a sharp incline. The crew of the train consisted of the plaintiff conductor, an engineer, fireman, head brakeman, and flagman.

While on this incline the engine, with 3 cars, was cut off and placed on a track called the north-bound track. Several other cars from another track, and also from those left on the incline, were coupled to the cars attached to the engine. The plaintiff opened the knuckle of the coupler on the rear end of this train, so that it would couple with 3 more cars soon to be brought down from another track. They came down and struck the knuckle pretty hard, but the pin of the drawhead of the approaching cars would not drop, and so the coupling was not effected. It was then about 7 o'clock in the evening and dark.

The plaintiff, by means of his lantern, signaled the brakeman or "front man (who was standing on top of the cars near the engine) to give the engineer a signal to ease ahead." He did so, and the cars moved a distance of 1½ or 2 car lengths, and stopped upon a signal from the plaintiff. The plaintiff then opened the knuckle on the coupler of the last car of the train attached to the engine, and went to the coupler on the other section, and tried to close it by shaking and slamming it with one hand, while holding his lantern with the other, but it would not close and the pin would not drop. At this time the section of the train attached to the engine moved back without warning him, and caught his left arm from the "wrist up to the elbow" between "the two coupling equipments," and so severely crushed it that it had to be amputated above the elbow.

This unfortunate accident seems to have occurred through a mistake in signals. Another train was drilling on the south-bound track near or opposite plaintiff's train. A brakeman belonging to the other train was on the ground between the tracks near the place where plaintiff had given signals. At the time the plaintiff was trying to get the coupler pin to drop, the brakeman of the other train signaled his engineer to back up. The head brakeman of plaintiff's crew, who had been giving signals to his engineer, not knowing that plaintiff had gone between the cars, thought that the plaintiff had given the signal, and so he in turn gave it to his engineer, who backed his train, which caught the arm of the plaintiff.

The plaintiff brought this suit for damages, and alleged that defendant was engaged in interstate commerce at the time and place and carelessly and negligently injured him because of its failure to comply with the requirements of the federal Employers' Liability Act (Comp. St. §§ 8657-8665) and the Safety Appliance Act (Comp. St. §§ 8605-8623) in providing suitable and proper safety appliances. The defendant traversed these allegations.

"The careless and negligent manner in which" plaintiff went between the cars was his failure to leave his lantern sitting outside the rails when he went between the cars, as the custom was alleged to have been. Plaintiff admitted that, when railroad employees went between cars at night, they generally left their lantern sitting outside the...