Chicago, B. & QR Co. v. Kelley

Decision Date14 November 1934
Docket NumberNo. 10020.,10020.
Citation74 F.2d 80
PartiesCHICAGO, B. & Q. R. CO. v. KELLEY.
CourtU.S. Court of Appeals — Eighth Circuit

J. W. Weingarten, of Omaha, Neb. (W. P. Loomis, of Omaha, Neb., J. C. James, of Chicago, Ill., and A. C. Scott, of Denver, Colo., on the brief), for appellant.

Donald Gallagher, of Lincoln, Neb., for appellee.

Before GARDNER, SANBORN, and WOODROUGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action brought by appellee as administratrix of the estate of George H. Kelley, deceased, to recover damages for death by wrongful act, under the provisions of the Federal Employers' Liability Act (U. S. C. title 45, §§ 51-59 45 USCA §§ 51-59). There was a verdict for $20,600 in favor of the appellee, and, from the judgment entered thereon, this appeal has been taken.

We shall refer to the parties as they appeared in the lower court.

Plaintiff's intestate, George H. Kelley, at the time of the accident resulting in his death, was forty-five years of age, had had sixteen years' experience as a brakeman and conductor, and was at that time in the employ of defendant as a brakeman, engaged in interstate commerce. The accident in which Kelley met his death happened at Juniata, Neb., September 2, 1933, while a unit of three freight cars was being set out. The freight train on which deceased was working had arrived at Juniata from the east, and stopped at a point on the main track east of the east switch. The railroad tracks there extend east and west, the main track running north of the depot, and the industrial track south of the depot. The switch used on this occasion to reach the industrial track from the main line is between 500 and 600 feet east of the depot. The industrial track is used for loading and unloading freight cars at the stockyards, oil rack, elevator, and coalyard. A graveled highway, 28 or 30 feet in width, crosses both the main track and the industrial track at right angles just east of the depot. The train crew desired to set out on this industrial track a tank car and two empty stock cars. These cars were the first three cars of the train, immediately following the engine.

As the train was stopped east of the switch, this cut of three cars was uncoupled from the rest of the train, which was left standing on the main track. By use of the movement known as a "flying switch," the three cars were diverted onto the industrial track; the engine remaining on the main track. The cars coasted down the industrial track about 500 feet; the last car just crossing the highway. The tank car was in the lead, and the two stock cars followed. Conductor Abbott and Brakeman Kelley rode the three cars as they coasted down the industrial track, and in the meantime the engine backed up east, again crossing the switch, which was then reopened so that the engine might go in on the industrial track to spot the stock cars at the loading chute and the tank car at the unloading spout. It was the intention of the crew, in conformity with the usual practice, in making this coupling, to stop the engine near the three cars, adjust the couplers and drawbars for coupling, then move the engine so as to contact the cars and make the coupling, and move them to the locations desired. This same crew, including Kelley, had done such work in this manner many times at Juniata, and at other like stations. Kelley and his co-workers understood what was to be done and how it was to be done.

As the engine moved down the industrial track, with the bell ringing, the engineer worked steam for about three or four lengths of the engine after entering the industrial track, then shut off the steam so that the engine coasted, traveling, according to estimates of witnesses, at about four to eight miles an hour. Brakeman Hood, Engineer Probasco, and Fireman Stevens were all on the engine. Contrary to expectation and to the usual practice, the engine did not stop before it came in contact with the cars. Kelley was standing on the north side of the tank car about 4 feet from the east end of the car, and, when the impact came, it threw him from the car to the track. The cars were moved west by the impact some 40 to 50 feet. Three sets of car wheels passed over Kelley, killing him instantly.

After the accident, it was found that the brakes on the tank car were set. The surviving members of the crew did not set them, and the inference is that they were set by Kelley. Before the impact, the engineer set both straight and automatic brakes and sanded the rails about 20 feet from the cars. The brakes held the wheels so that they slid along the rails 15 to 18 feet, but failed to stop the engine before it crashed into the closed coupler on the east car. As these cars were passing down the industrial track, the conductor stepped off, near the east side of the highway crossing, and walked to the depot, about 80 feet, to give the agent the waybills for these cars, and he had just arrived at the door of the depot when he heard the impact of the engine against the cars. There was testimony that it would take about twenty-six seconds to walk the distance covered by the conductor. When he stepped off the cars, they were moving slowly, and he observed Kelley on the stock car as it passed him. During the time the conductor walked to the depot, Kelley must have gotten down off the stock car onto the tank car, and set the brakes before the impact.

Weeds were growing on the roadbed, both inside and outside the rails, and the wind, which was blowing from the south, blew these growing weeds over the tops of the rails. When the engine stopped, following the impact, its gangway, which is the space between the engine and the tender, was in the center of the graveled highway crossing. Kelley and the crew had set cars out on this same track several times within the two weeks preceding the accident, and Kelley had spoken to Conductor Abbott about the growing weeds blowing over the top of the rails, and Abbott had told him the only thing for him to do was to be careful. In the growing season it was not unusual for weeds and vegetation to grow around and between the rails on these side tracks.

In switching movements, such as the one under consideration, it was customary for some one to ride the cars while they were moving, so that they could be stopped. The testimony is in conflict as to whether or not it was unusual for an engine to slide 15 to 18 feet in attempting to stop.

Deceased left surviving him a widow and four children; the children being aged 13, 16, 18, and 19, respectively.

At the close of the evidence, defendant moved for a directed verdict, which motion was denied, and the case was sent to the jury on the following issues of alleged negligence: (1) That the engineer failed to keep the locomotive under proper control; (2) that the locomotive was driven and crashed into the three cars with great force and violence, causing the cars to jerk and move suddenly; (3) that the locomotive was driven and crashed into the cars without any signal or warning to Kelley; (4) that defendant's tracks were overgrown with weeds, which it well knew, or in the exercise of reasonable care should have known; that they were slippery and afforded little or no traction for the wheels of the locomotive because of the freshly crushed weeds thereon, which caused the wheels of the locomotive to slide on the rails, and contributed to the crash of the locomotive into the three cars.

On this appeal it is contended that: (1) There was no proof of actionable negligence; (2) the decedent's death resulted from one of the ordinary risks of his employment, which he assumed; (3) the court erred in its instructions to the jury, fixing the value of the pecuniary loss to the beneficiaries as the present value of the wages deceased would have earned had he survived; (4) the court erred in instructing the jury that a recovery might be had for loss to children after they attained their majority, there being no evidence of reasonable expectation of such support; (5) counsel for plaintiff was guilty of improper conduct, to the prejudice of defendant; (6) the court erred in denying defendant's motion for a directed verdict.

To warrant recovery under the Federal Employers' Liability Act (45 USCA §§ 51-59), there must have been negligence causing or contributing to the injury or death. Seaboard Air Line v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; New York C. R. Co. v. Ambrose, 280 U. S. 486, 50 S. Ct. 198, 74 L. Ed. 562; Atchison, T. & S. F. Ry. Co. v. Toops, 281 U. S. 351, 50 S. Ct. 281, 74 L. Ed. 896; Atchison, T. & S. F. Ry. Co. v. Saxon, 284 U. S. 458, 52 S. Ct. 229, 76 L. Ed. 397.

In reviewing the action of the court in denying defendant's motion for a directed verdict, it is not the province of the court to weigh the evidence, but to examine it only for the purpose of determining whether there was substantial evidence to sustain the verdict, and, in considering the evidence for that purpose, the testimony in favor of the appellee must be accepted as true, and appellee is also entitled to such reasonable favorable inferences as may fairly be drawn therefrom. Where the evidence so considered is of a character that reasonable men may reach different conclusions, the case is one for the jury. Illinois Power & Light Co. v. Hurley (C. C. A. 8) 49 F. (2d) 681; Philadelphia Storage Battery Co. v. Kelley-How-Thomson Co. (C. C. A. 8) 64 F.(2d) 834; C., M., St. P. & P. R. Co. v. Linehan (C. C. A. 8) 66 F.(2d) 373.

It appears here that weeds had been permitted to grow up on the roadbed on which the industrial track was located, so that the tops of them were above the rails. This condition was known to the engineer in charge of the engine. In this condition of the track, the engine approached these cars for the purpose of making a coupling. Brakeman Hood was on the gangway, ready to step off onto the ground when the engine...

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