Weekly v. Baltimore & OR Co.

• Decision Date: 04 March 1925
• Docket Number: No. 4057.,4057.
• Citation: 4 F.2d 312
• Parties: WEEKLY v. BALTIMORE & O. R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

4 F.2d 312 (1925)

WEEKLY v. BALTIMORE & O. R. CO.

No. 4057.

Circuit Court of Appeals, Sixth Circuit.

March 4, 1925.

E. C. Chapman, of Cleveland, Ohio, for plaintiff in error.

W. T. Kinder, of Cleveland, Ohio (Tolles, Hogsett, Ginn & Morley, of Cleveland, Ohio, on the brief), for defendant in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

DENISON, Circuit Judge.

Domer, a brakeman upon the Baltimore & Ohio Railroad, was caught between freight cars being coupled and was killed. This action by his administrator, brought under the federal Employers' Liability Act (Comp. St. §§ 8657-8665), came to trial before a jury; and at its conclusion the court instructed a verdict for defendant. The only question presented to us is whether there was substantial evidence that the coupling device did not reach the standard prescribed by the Safety Appliance Act (Comp. St. § 8605 et seq.). This requires a fuller statement of fact.

The freight car, which carried one of the couplers and may be called car A, was with six others standing at night upon an industrial side track, which track at this point was upon a slight curve — according to the map not over one or two degrees. The freight train which was to take these cars away, and upon which Domer was brakeman, came along upon the adjacent main track, and ran past the cars on the side track, and past the switch point shortly beyond. The train was then to back in and pick up these cars. At or near the switch point Domer dropped off his train and walked back toward car A and the other cars standing there, in order to observe and be useful in and about the coupling of them to the train when it should back in. Of the cars standing there waiting to be pulled out, the one next to A toward the backing train, which may be called car B, carried the usual coupler intended to interlock with that on car A, and stood about four feet away. As the backing train approached the vicinity of B, Domer was seen to step in between A and B, and so to disappear from the sight of those who were looking along the side of the train. He was in some way caught by the impact and killed. There is a considerable amount of testimony that the adjacent couplers of A and B were found the next morning in perfect order and were completely operable, as they should be, by the coupler rods extending beyond the end of the car sill. Upon car A this rod projected to the side opposite Domer's position before he went in. Upon car B, the rod projected the other way. There is nothing to indicate that either coupler was not up to the statutory standard of safety, except as such inference may be drawn either from the fact of the accident or from the testimony now to be stated.

After the accident, cars A and B were left standing where they were until the next day. The evidence tends to show that immediately upon the accident the jaw of coupler B was properly open, while that of A was closed, so as to be in noncoupling condition. It was assumed by all parties upon the trial that the actual fault, if any, was in the car A coupling; if possibly there was anything wrong with the other one, there is nothing to indicate that the defect played a causative part in the trouble; and coupler B may be dismissed from consideration. Early the next morning, and before car A was disturbed, this coupler was inspected at different times and separately by two railroad inspectors. Each testifies that he examined it thoroughly and it was in perfect order. At the time of one of these inspections (there...