Chesapeake & O. Ry. Co. v. Wood

• Decision Date: 27 July 1932
• Docket Number: No. 5979.,5979.
• Citation: 59 F.2d 1017
• Parties: CHESAPEAKE & O. RY. CO. v. WOOD.
• Court: U.S. Court of Appeals — Sixth Circuit

59 F.2d 1017 (1932)

CHESAPEAKE & O. RY. CO. v. WOOD.

No. 5979.

Circuit Court of Appeals, Sixth Circuit.

July 27, 1932.

James P. Wood, of Cleveland, Ohio (Wilson & Rector, of Columbus, Ohio, Tolles, Hogsett & Ginn, James P. Wood, and Thos. O. Nevison, all of Cleveland, Ohio, on the brief), for appellant.

R. B. Newcomb, of Cleveland, Ohio (Newcomb, Newcomb & Nord and W. K. Sullivan, all of Cleveland, Ohio, on the brief), for appellee.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKS, Circuit Judge.

Action under the Federal Employers' Liability Act (tit. 45, U. S. C. c. 2, §§ 51-59 45 USCA §§ 51-59) and the Boiler Inspection Act as amended June 7, 1924 (tit. 45, U. S. C. c. 1, § 23 45 USCA § 23) by Emma Wood, administratrix of the estate of E. E. Wood, deceased, against the Chesapeake & Ohio Railway Company, a Virginia corporation, to recover damages for his death. Judgment for plaintiff. Defendant appeals.

The Clifton Forge Division of appellant's railway extends between Hinton, W. Va., and Clifton Forge, Va. On the night of October 29, 1930, Wood was the head brakeman upon a freight train running from Hinton to Clifton Forge. This train was called a "pickup" because it picked up and set out cars at stations along its route. At about 1:45 o'clock a. m. of the 30th the train made up of engine 1548, sixty-four cars, and a caboose, running eastwardly, arrived at Ronceverte, W. Va. Wood was riding the engine, and as the train passed "W. R. Cabin" near the west end of the Ronceverte yard and about one mile west from the point of the accident, he took the orders handed up to him by the operator there. After reading these orders he handed them to Payne, the engineer. They were that the train should pick up five cars and set out thirteen at Ronceverte.

As the train proceeded eastwardly the rear brakeman, Mankey, cut off the caboose upon the east main, west of the west crossover, which connects the east main and the "Old Fill Out" track lying on the south side of and parallel with the east main. When the engine reached a point near the east crossover connecting the east main and the Old Fill Out, Wood took his lantern and stepped off on the south side. His purpose was to count and cut off the thirteen cars to be set out. The engine was then to push them backwardly through the crossover to the Old Fill Out and thence through another crossover to the "New Fill Out" track which paralleled the Old Fill Out. After Wood stepped off the engine the train ran forward until in the judgment of the engineer the thirteen cars to be set out had cleared the crossover. While the train was thus moving Payne looked back and last saw Wood apparently standing in the clear between the east main and the Old Fill Out tracks. The engine was then about eight or ten car lengths from Wood.

Appellant kept an engine and crew in the Ronceverte yards. The duties of this crew were to do the switching necessary, to fill out the east-bound pick-up with cars which had been left in the yard to be forwarded. When the train was thus made up the engine No. 1509, was used to push the pick-up train from Ronceverte eastwardly to Alleghany. Engine 1509 had been in this particular service nightly, except Sundays, for five or six months but was not equipped with a rear headlight. On the night of the accident this engine was waiting in a "pocket" in front of the roundhouse off the Old Fill Out track and east of the pick-up engine and train. When the engineer, Phillips, learned that the pick-up train was coming, he ran engine 1509 eastwardly through the switch and out upon the Old Fill Out track; then backing it westwardly at about ten or fifteen miles an hour, he passed engine 1548 and its train. He then backed through a crossover to the east-bound main and coupled the pick-up caboose to the rear of his engine. He continued to back to a crossover, then pulled through the crossover to the Old Fill Out, and thence through another crossover to the New Fill Out where the engine picked up twenty-five cars which by the necessary switching movements were to be coupled to the rear end of the pick-up train. With the train thus made up, engine 1509 was to push the pick-up train from Ronceverte to Alleghany.

While backing westwardly after leaving the pocket and just after passing engine 1548, engine 1509 struck and killed Wood while he was standing upon the Old Fill Out track near the east crossover. At the time of the accident engine 1509 was carrying a white lantern on the rear end but had no headlight. As engine 1509 was thus running backwardly the engineer testified he could see Wood's white lantern but was unable to see Wood himself. The rules of the Interstate Commerce Commission effective at the time are printed in the margin.¹

Appellant challenges: (1) The denial of a directed verdict; (2) the instruction to the jury that rule 131 applied to the movements of engine 1509; (3) the submission to the jury of the question whether appellant had violated the Boiler Inspection Act; and (4) the failure of the court to dismiss the case for lack of venue. The first three grounds are considered together and depend for their determination upon the proper interpretation of the rules.

Appellant's theory is that the applicable rule is 129 (b) and that the movement of engine 1509 was a terminal movement and/or one to pick up a detached portion of its train. We are not in accord.

We think that rule 129 (b) applies to a locomotive making regular trips with a train from one point to another over the road and which is from necessity required to run...