Louisville & NR Co. v. Davis

Citation75 F.2d 849
Decision Date14 March 1935
Docket NumberNo. 6581.,6581.
PartiesLOUISVILLE & N. R. CO. v. DAVIS.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Ed T. Seay and A. W. Stockell, both of Nashville, Tenn., for appellant.

R. L. Macey and S. L. Felts, both of Nashville, Tenn. (A. V. McLane and Will Fox Fowler, both of Nashville, Tenn., and Albert Williams, of Lebanon, Tenn., on the brief), for appellee.

Before MOORMAN, SIMONS, and ALLEN, Circuit Judges.

SIMONS, Circuit Judge.

While in the employ of the appellant railroad, and while both were engaged in interstate commerce, the decedent Davis was injured and died. In the trial of the action below, brought under the Federal Employers' Liability Act (45 USCA §§ 51-59), issues involving the railroad's negligence, and its causal relation to the resulting death, were submitted to the jury, which returned a verdict for the plaintiff. Of the errors complained of, our conclusion necessitates a discussion of only that which relates to the denial of the defendant's motion for a directed verdict at the conclusion of all the evidence.

Davis was injured while a member of a bridge crew engaged in removing false work under the defendant's railroad bridge near Culleoka, Tenn., on its main line from Louisville to New Orleans. The false work constituted a temporary wooden structure supporting the bridge while new steel was being put in. It consisted of timbers and blocks upon which the steel rested, supported by bents. A bent was made by driving long piles into the ground and fastening them together by nailing braces crosswise and diagonally on the piles. The piles were about thirty-six feet long, sunk five or six feet into the ground, and the braces were three inches by ten, some twenty feet long and some eight or nine feet long. The braces were fastened to the piles with eight or nine inch spikes. The method used in taking down the false work was to first take out the blocks and timbers, then to pull the braces from the piles with a power crane, after which the piles were removed by the crane. The customary method of removing braces from piles had been to drive wedges between the brace and the pile and then pry off the brace with a crowbar. The power crane had, however, been used on at least one prior bridge operation in which Davis had been employed.

Upon the day of the accident the bridge crew consisted of Paris, the foreman, Davis, and eight or nine others. Davis was a straw boss, and in the foreman's absence, or when the crew was divided, would give orders and direct the work. Paris was present at the time of the accident, but was on the side of the creek opposite Davis when it occurred. Paris had had instructions to take off twenty long braces and clear them of nails in time to load them on a local freight train due at the bridge at noon, so that they could be shipped to Nashville for use upon another bridge. This instruction was communicated to the crew, and Davis was told to get the long braces off the first thing so that they could be loaded. Some of the blocks and timbers taken down the day before had been left on the ground, and the men engaged in removing them were instructed to cease and help get the long braces out. In the debris near the place where Davis was working was a 12 × 12 inch block, about two or three feet long, upon which had been thrown a short brace eight feet in length in such manner that it lay across the block with one end upon the ground and the other extending about twenty-two inches beyond the block. Just as Davis was returning from the place where the long braces were being piled, and the crane was engaged in pulling a brace from a pile, McNeese, a fellow employee, shouted, "Whoa, the pile is coming up." At that time it appeared that the brace to which the power was being applied was not coming off, but was pulling the pile with it, and upon McNeese's warning the engine was stopped. Davis, being apparently out of range of the pile if it should fall, gave the order, "Go ahead, the pile has got to come up anyhow." McNeese signaled to the operator of the crane, power was again applied, and the pile drawn from the ground. The upper end of the pile tipped, striking either the crane or the ground. The impact caused the brace to pull loose from the pile, and the butt end of the latter, dropping from a height of about twenty feet, struck the elevated end of the short brace lying upon the block as previously described. Davis was at the time standing upon the lower end of the short brace, with one foot thereon and the other on a bank of dirt. Upon the opposite end of this brace being struck by the falling pile, Davis was catapulted into the air, and...

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