American Car & Foundry Co. v. Kindermann

• Decision Date: 13 July 1914
• Docket Number: 4164.
• Citation: 216 F. 499
• Parties: AMERICAN CAR & FOUNDRY CO. v. KINDERMANN. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

216 F. 499

AMERICAN CAR & FOUNDRY CO. v. KINDERMANN. ^[1]

No. 4164.

United States Court of Appeals, Eighth Circuit.

July 13, 1914

M. F Watts, Edwin W. Lee, William R. Gentry, and G. A. Orth, all of St. Louis, Mo., for plaintiff in error.

Lon O Hocker, of St. Louis, Mo. (George F. Haid, of St. Louis, Mo on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and TRIEBER and REED, District Judges.

TRIEBER District Judge.

This is an action to recover damages for injuries sustained by the defendant in error, who will be referred to herein as the plaintiff, while in the employ of the plaintiff in error referred to herein as the defendant, due to the alleged negligence of the defendant. The petition alleges that on the 12th of March, 1913, he was directed to go under a car standing in defendant's yards for the purpose of making repairs on the same; that the body of the car was raised several feet from the ground, and each end of the car body was resting on supports or wooden timbers; that while he was under the car an engine operated by the defendant ran into the car, knocked it from its supports, causing it to fall on plaintiff, thereby injuring him. The negligence of the defendant is charged to consist of the failure of the defendant to exercise ordinary care to provide plaintiff with a reasonably safe place to work; that it made no provision for his being warned or protected against the movement of cars in the yards, and in failing to advise the other employes of plaintiff's dangerous position under said car; that the engine which ran into the car was in a defective and unsafe condition in that the spring on the throttle was defective and would not work, so as to enable the engineer to stop the same or to check the speed thereof in time to avert the collision.

The evidence on the part of the plaintiff was that he was in the employ of the defendant, and on the day of the accident, he was assigned to work underneath a car belonging to a certain railroad company, which car had been sent to defendant's plant for repairs; the car had been taken off the wheels and put on two horses or timbers about 20 inches high, one near each end of the car; the car leaned somewhat to one side, so that one edge of it was much closer to the ground than the other; the position of plaintiff while at work under the car was such that he could not see whether other cars were approaching or not; he was driving rivets into the bottom of the car; a young man named Senciboy was his helper; Senciboy stood inside of the car while plaintiff was working on it; Senciboy called out a warning to him that a car was coming in on the track and was going to hit the car on which plaintiff was at work; plaintiff attempted to escape, but before he could do so the car on which he was working was struck by the other car, inflicting the injuries complained of.

The cause of the accident was that the switching crew in the employ of the defendant was handling an engine and a car attached thereto, intending to bring the same into the yard where plaintiff was at work; the engine was headed north, but was backing toward the south, having one box car immediately south of it, which it was pushing into the yard; between the gate and the car where plaintiff was at work there stood a box car, which was a few feet inside of the yard and a short distance north of the car under which plaintiff was working and on the same track. The plan of the switching crew was to enter the yard above the car attached to the engine, run against the box car standing north of the one where plaintiff was at work, draw it out of the yard, and switch it away replacing it with the car that was attached to the engine. The engine approached very slowly, the bell being rung at the time by the fireman; when the car which was coupled to the engine bumped against the car which the engine was to draw out of the yard the coupling missed, and one of the members of the switching crew gave a stop signal which the engineer immediately obeyed; the knuckle on the car was then readjusted by the switchman and a come ahead signal was given; the engineer opened the throttle, moved slowly forward until he bumped into the car the second time, received a second stop signal, and immediately shut off steam and started to apply the brake, but as he did so the throttle flew open, permitting steam to come into the cylinders of the engine, and thereby caused the engine to make a sudden lurch forward...