DETROIT, T. & IR CO. v. Hahn, 5643.

• Citation: 47 F.2d 59
• Decision Date: 13 February 1931
• Docket Number: No. 5643.,5643.
• Parties: DETROIT, T. & I. R. CO. v. HAHN.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

47 F.2d 59 (1931)

DETROIT, T. & I. R. CO. v. HAHN.^*

No. 5643.

Circuit Court of Appeals, Sixth Circuit.

February 13, 1931.

Wallace R. Middleton, of Detroit, Mich. (Longley & Middleton and Wallace Visscher, all of Detroit, Mich., Schaefer & Lawrence, of Cleveland, Ohio, and George S. May, of Napoleon, Ohio, on the brief), for appellant.

R. B. Newcomb, of Cleveland, Ohio (Newcomb, Newcomb & Nord, of Cleveland, Ohio, on the brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

MOORMAN, Circuit Judge.

Appellee was employed as a brakeman on a freight train of appellant. On August 15, 1927, he was a member of a crew engaged in running a train from Detroit, Mich., to Napoleon, Ohio. In the course of the trip, at Wauseon, Ohio, it became the duty of the crew to move two cars from a side track to the main track. It was found convenient to effect this movement by making a drop switch, and appellee was placed on the cars to stop them by the use of a hand brake before they reached other cars standing on the main track. He failed to stop them in time to avoid a collision and was thrown from the top of the car on which he was riding and sustained injuries necessitating the amputation of his leg. This is an appeal from a judgment of damages which he recovered therefor in the District Court.

It is admitted that by the use of an efficient hand brake the cars could have been stopped in two or three car lengths after they were uncoupled from the engine. Appellee testified that he set the brake on the leading car as tightly as it could be set some 200 feet or more from the point of collision, that the cars continued to move with increasing speed, and that upon discovering that the brake would not stop them he hurried to the brake on the other car, but before he could apply it the collision occurred. He contends that this testimony with other testimony of like effect is substantial evidence of an inefficient brake. On the other hand appellant introduced witnesses who testified that they examined and tested the brake immediately before and after the accident and found it to be in good working order on both occasions. Its contention is that the collision was due, not to any inefficiency in the brake, but to appellee's failure to apply it in due time. Upon this latter theory it contends that it was appellee's negligence which caused the injury.

The claim of appellee that there was negligence in the speed of the cars is not only not supported by substantial evidence, but is contradicted by his primary insistence that there was a defective brake. This first insistence is based upon the undisputed evidence that an application of an efficient brake would have stopped the cars in two or three car lengths, with the further evidence of appellee that he applied the brake 200 feet or more from the point of collision. His evidence thus tended to show that the cars would have been stopped had the brake been efficient, while appellant's proof was directed to showing that the brake was efficient but appellee failed to use it at the proper time. It accordingly appears, that the injury resulted either from an inefficient brake or the failure to apply an efficient one, and obviously there was no causal connection between the speed of the cars and the collision. Appellant is not, however, in position to complain of the submission of that question to the jury, for it not only failed to except to the charge on that point, but offered an instruction which...