Atchison, T. & S.F.R. Co. v. Myers

Decision Date25 October 1894
Docket Number120.
PartiesATCHISON, T. & S.F.R. CO. v. MYERS.
CourtU.S. Court of Appeals — Seventh Circuit

This was an action on the case by William Myers against the Atchison, Topeka & Santa Fe Railroad Company. Plaintiff obtained judgment. Defendant brings error.

This action was begun by William Myers in the circuit court of Hancock county, Ill., and was removed by the plaintiff in error into the circuit court of the United States for the southern district of Illinois on account of the diverse citizenship of the parties. It was brought to recover damages for the loss of his arm, which was crushed between the deadwoods of two foreign cars which Myers was attempting to couple in the railroad yards at Streator, where he was employed as a switchman. The declaration contained three counts. The defect complained of was alleged to consist in the unsafe and dangerous condition of the deadwoods on the moving car, which was unknown to plaintiff, in that one of the bolts which fastened the deadwood to the car was broken or its nut had come off, so that the outer end of the bolt was loose, and projected about four inches, making the same extremely dangerous. That, in making the coupling in the usual and ordinary manner, it was necessary to step between the cars, and lift the link in the standing car, and enter it in the drawbar of the moving car as it came against the standing car, and then quickly raise the arm up so as to avoid injury from the contact of the deadwoods. That in making the coupling the plaintiff placed himself in the proper position, and held the link until the moving car came close enough to allow the entrance of the link into the drawbar, and then attempted quickly to raise his arm out of danger; but his arm and sleeve were caught by the broken bolt in the deadwood, and held until the deadwoods, coming together, forced the bolt entirely through his arm, and crushed it so it had to be twice amputated. He alleged that he used due care to avoid injury. He avers that it was the duty of the defendant to have and keep the car in safe repair, which it negligently failed to do. In the third count he alleges that he believed the car was in safe condition and good repair, and that he acted on such belief in making the coupling.

It was shown on the trial that the defendant in error was injured a few minutes after 4 o'clock p.m. of February 22, 1890 while it was yet broad daylight. He had worked as a railroad brakeman and switchman for three years, and began switching in the Streator yards in January, 1890. His duty as switchman was to go on and about the cars in the yard; to assist in transferring them; to couple and uncouple cars, and do all such work in connection with the trains, cars, and yard as might be required, and, as such, that it became his duty to make the coupling in which he was engaged when injured. A Delaware, Lackawanna & Western car had the loose bolt. The deadwoods on it came out even with the drawbar, and were 12 to 18 inches wide and about 18 inches up and down. They were fastened to the car with four of six bolts. He first saw this car in the Santa Fe yard on the morning of the day of the accident. He heard the car inspector make a statement that morning in relation to this car. It was about 7 o'clock in the morning, and he was close to it. The foreman, Branz and the yard master, Case, were present. The car inspector said the car was in bad order. He told Mr. Case: 'Case, this car is in bad order, and we have no right to fix the car. ' The yard master had charge of the switching, and Branz, foreman of the switch engine, acted under him, and plaintiff received his orders from the foreman. The car inspector marked both sides of the car, with chalk: 'Bad order. Return to 'Three I." Myers saw the car in the yard two or three times during the day. The accident occurred on the 'Three I' Y, which connects the Santa Fe with the Wabash Railroad. The car came from the 'Three I' Railroad. He knew the car was to be taken back where it came from, and that it was set out for that purpose. Mr. Whalen was car inspector at Streator. He had been car inspector of the Santa Fe 12 years. He saw this car in the Santa Fe yards on the morning of February 22, 1890. He inspected the car, and marked it: 'Bad order. Return to 'Three I." The brake connections were defective. That was all that he found wrong. He looked this car over when inspecting it, and found no other defect. The plaintiff testified that his sleeve and arm were caught, while attempting to couple the cars, by a bolt which projected about two or three inches from the deadwood of this foreign car, and in consequence he could not remove his arm in time to avoid the injury. He claimed that he did not know of the defect, and that the coupling was required to be made so quickly that he had no opportunity to discover it. His arm was crushed between the elbow and wrist, and was twice amputated above the elbow. On the trial the plaintiff in error called William Reilly, a yard master of the Wabash railroad, who had had 30 years' experience as switchman and yard master, and asked him what his duties as yard master were with relation to coupling and uncoupling cars, and the manner of doing the same; and, upon objection thereto, counsel stated that he offered to prove in answer to the question the following: 'I offer to prove by the witness that, in coupling cars such as these two were, it was both unusual and unnecessary, and especially dangerous, for a person to attempt to make the coupling by placing his arm between the deadwoods, and that the usual and proper way to make it would be to lift the link by reaching over and above the deadwood, or under and around the deadwood. ' Leave to prove facts as above stated was denied by the court, to which ruling the plaintiff in error excepted. When the defendant in error rested his case the plaintiff in error moved the court to take the case from the jury, on the ground that a prima facie case for recovery had not been made out. The court overruled the motion, and an exception was reserved. At the conclusion of the evidence the plaintiff in error again moved the court to give the jury a binding instruction to return a verdict in its favor, which motion was overruled and an exception taken.

During the closing argument to the jury, counsel for defendant in error said: 'Even if they had no report (referring to the Santa Fe road), they can, by their books, trace that car from that moment to the present day. They can go to that other company, and find out where that car was every hour from the time this injury occurred up to the present time. They can show where it was repaired, if it was repaired, and, if it was not repaired, they can show that fact by competent evidence. They have not done it. They can go to the Wabash, or the road it belongs to, where every number of the cars is kept in a book, and every time it is inspected is recorded, and they can bring that report here, and show whether there was a bolt loose there at that time. If there was no bolt loose there at that time, and no bolt loose since that time, they can show that fact, and it would be pretty strong evidence that this man was mistaken. ' Specific objection was made to the foregoing statement on the ground that there were no such facts in evidence before the jury, but the court declined to interfere, to which the plaintiff in error excepted.

Among the instructions given by the court, and excepted to by the plaintiff in error, was the following: 'It is the duty of the defendant to furnish its employes with proper machinery or instrumentalities for their use in the work assigned them, and to see to it that they are kept in a reasonably safe condition, or in reasonable repair. And when an employe, in the proper and diligent discharge of his duty, is injured from the negligent failure of the company to perform this duty, it is liable. ' At the proper time the plaintiff in error asked the court to give three written instructions to the jury. The third instruction is the only one which it is necessary to set out. It is as follows: (3) 'The plaintiff was employed by the defendant as a switchman in its railroad yards at Streator, and as such it became and was his duty to couple and uncouple the cars handled by the defendant there. By accepting such employment, he assumed its natural and usual risks and hazards, and, if you believe from the evidence in this case that the injury which the plaintiff received was due to the natural and usual hazards and risks of his employment there as switchman, then the plaintiff cannot recover in this action, and your verdict should be for the defendant. ' The court refused to give the above instruction, and a proper exception was reserved.

Edgar A. Bancroft and Eldon J. Cassoday, for plaintiff in error.

A. W. O'Hara, Timothy J. Scofield, M. J. Wade, and Burns & Sullivan, for defendant in error.

Before WOODS, Circuit Judge, and BAKER and SEAMAN, District Judges.

After making the foregoing statement the opinion of the court was delivered by

BAKER District Judge.

No available error is presented by the refusal of the court, at the conclusion of the evidence of the defendant in error in opening his case, to instruct the jury to return a verdict for the plaintiff in error. The plaintiff in error did not stand upon the ruling of the court, but having elected to proceed with the case and introduce its evidence, and take the chances of a verdict in its favor, it has waived its right, if any it had, to avail itself of the alleged error in the ruling of the court. Railroad Co. v. Charless, 2 C.C.A. 380, 51 F. 562; Elmore v. Grymes, 1 Pet. 469; De Wolf v. Rabaud, Id. 476; Crane V. Morris' Lessee, 6 Pet. 598; Silsby v....

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