New York, C. & St. LR Co. v. Slater

• Decision Date: 28 February 1928
• Docket Number: No. 3842.,3842.
• Citation: 23 F.2d 777
• Parties: NEW YORK, C. & ST. L. R. CO. v. SLATER.
• Court: U.S. Court of Appeals — Seventh Circuit

23 F.2d 777 (1928)

NEW YORK, C. & ST. L. R. CO. v. SLATER.

No. 3842.

Circuit Court of Appeals. Seventh Circuit.

January 13, 1928.

Rehearing Denied February 28, 1928.

Howard L. Townsend and Albert E. Thomas, both of Fort Wayne, Ind., for plaintiff in error.

Edward B. Henslee, of Fort Wayne, Ind., for defendant in error.

Before ALSCHULER, EVANS, and PAGE, Circuit Judges.

EVAN A. EVANS, Circuit Judge.

Plaintiff brought this action to recover damages arising from the death of her husband occasioned by the alleged negligence of defendant. Judgment followed a verdict in plaintiff's favor.

Defendant (the parties are described as in the District Court) seeks a reversal of the judgment because of the failure of the court to grant its motion to direct a verdict. It offers two grounds as the basis of its motion: First, the evidence fails to show actionable negligence on its part; second, the evidence shows conclusively that the deceased was employed in intrastate rather than interstate commerce.

The test by which we are to determine whether the evidence presented a jury question has been stated in a multitude of decisions. It is forcibly expressed in Gardner v. Michigan Central Railroad Co., 150 U. S. 349, 14 S. Ct. 140, 37 L. Ed. 1107.

"The question of negligence is one of law for the court only where the facts are such that all reasonable men must draw the same conclusion from them, or, in other words, a case should not be withdrawn from the jury unless the conclusion follows as matter of law that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish."

In other words, the appellate court must dispose of this motion upon that view of the testimony most favorable to the party against whom the motion is directed. The occasion for a restatement of a rule so well established is the defendant's statement of facts. It has stated and discussed the facts as though we would first weigh the conflicting testimony and thereafter make our conclusion respecting its negligence.

Deceased and the other employees were engaged in removing certain stringers and loading them on a gondola car. These stringers had been used to sustain a temporary track, and their use was at an end. They were large and heavy — 30 feet long, 18 inches wide, and 9 inches thick. The removal operation consisted of fastening hooks to the stringers — the hooks being connected with a cable which was attached to the arm of the derrick. The hook was something like an iceman's tongs. After the hook was fastened, the crane operator applied his power, and the stringer was lifted from the ground and swung into a position, propelled by the force of gravity. Five timbers had been lifted when the operation began on the one the removal of which resulted in Slater's death. Its location called for more caution. As the timber lifted, it started to swing slowly, but its momentum increased. The timber swung violently against the car, and Slater, who was in its path, was struck and killed.

From a reading of the testimony, it is apparent at once that various inferences may be legitimately drawn from certain facts tolerably well established. The persuasiveness of this testimony, and the inferences, too, would depend, we think, upon the individual weighing them. In other words, different men might, and probably would, accord a different degree of persuasiveness to them. A somewhat detailed statement of the removal of this sixth timber is necessary to an understanding of the narrow question involved.

The first four timbers were immediately north of the gondola car, and they were lifted by the crane 6 or 8 feet, and then carried south to a point over the car, and then lowered into it. The fifth and sixth timbers were immediately east of the first four, and of course east and north of the gondola car. The fifth timber was dragged to a position immediately north of the gondola car — into the same place as were the first four timbers. From this position it was placed on the gondola car by an operation similar to that followed in loading the first four timbers.

The sixth timber was handled differently. The hooks were attached at a point about 10 feet from the east end. This place of attachment was considerably east and a short distance north of the gondola car. Lifting the east end of this 30-foot timber was, to the knowledge of Moyer, as he admits, certain to result in its swinging in a partial circle south. As it broke away from the dirt in which it was embedded, it was certain also to gain momentum. Proof of this statement appears in the evidence showing the great force with which this timber struck the car. Moyer knew what would happen, as is shown by his testimony. He said that he told the deceased: "Certainly it will tear itself loose. Yes; when it swings, it is bound to swing south across the other timbers."

Defendant's negligence, if any there be, must arise out of the conduct of Moyer in lifting the timber before Slater reached a place of safety. As bearing upon this particular issue, we quote from the testimony of four witnesses.

Mr. Geist, one of the crew, stated: "After we arrived there that morning, the first thing that was done, Slater gave us our places to work. He told me to give the signals for lifting the timbers. * * * Trier and I hooked the clamps onto this timber. After the hooks were hooked, I gave Moyer a signal that it was already hooked and ready to lift. That was a signal to lift up or take the slack out of the cable. Mr. Moyer took care of the rest, after that signal was given. * * * I did not give him a signal to raise it. The first signal was all I gave him. * * * The only signal I gave was that the hook was hooked and ready to raise. When the hooks were fastened, I walked out to the north side out of the way, out on the fill. * * * At the time I left there, the stringer was still in the ground and the cable was stationary. Trier started away about the same time I started, and Slater started about the same time, I think."

Freels, another one of the crew, testified: "Carper was sitting with me on the west end of the gondola car. After Moyer got back in the crane, and from then on until the time the jar came, I did not hear Moyer, or Geist, or anybody else, sound any warning. * * * I was not doing anything but watching that timber. The first thing I heard after the timber swung around, Geist hollered to Moyer that Slater was hurt. He came from the east end of the gondola car. I looked down and heard him say, `Pop is hurt.' He was down at the side of the car that we were in."

Carper, another member of the crew, testified: "I felt the car jerk when the timber hit, I heard Trier holler, and looked down on the side of the car, and saw him step around the corner of the car, and then step back. When he stepped back, Slater fell into his arms. I did not know where he was, until I heard him holler; then I saw him. He got back out of the road, I presume, and he hollered, and I looked and saw him, and I saw Slater fall into his arms. At that time the timber was standing up on an angle against the end of the car. The east end of the timber was about 12 feet above the ground, and I think it was resting against the car at about its center point, and the hooks were fastened to it near the east end. Before that timber was raised, I did not see Mr. Geist give any signal or yell any warning."

Moyer, the crane operator, testified: "I applied the power and raised the stringer up when I got a signal from Geist. When Geist gave me the signal, he was right by the timber; and when he was right by...