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

• Decision Date: 05 October 1896
• Docket Number: 290.
• Parties: ATCHISON, T. & S. F. R. Co. v. MEYERS.
• Court: U.S. Court of Appeals — Seventh Circuit

76 F. 443

ATCHISON, T. & S. F. R. Co. v. MEYERS.

No. 290.

United States Court of Appeals, Seventh Circuit.

October 5, 1896

Where a railroad company receives in its yard a car of another railroad, and such car is examined, and notice given that it is defective and is to be returned, the company has fulfilled its duty in regard to the car, and is not liable for injuries resulting from such defect, which an employee receives while the car is being shifted about the yard; the negligence in such case, if any, being that of his fellow servants.

This is the second writ of error in this case. See 11 C.C.A. 439, 63 F. 793, 24 U.S.App. 295. The action is for personal injury suffered by the defendant in error, William Meyers, while employed as a switchman in the yards of the plaintiff in error at Streator, Ill. The injury consisted in the loss of the right arm, which was crushed between the bumpers or deadwoods of two cars which the defendant in error was attempting to couple. It is alleged in the declaration that on the 22d day of February, 1890, it became the duty of the plaintiff to assist in making up a train of freight cars for the defendant at Streator, and, while so doing, to couple two cars, one of which was standing as part of an incompleted train, and the other was being switched into position for coupling, and was moving at the speed for four miles per hour until brought into contact with the stationary car, at which time the plaintiff attempted to effect the coupling in the usual and necessary way, with a link and pin; that the deadwoods on the cars were of different heights, being on the moving car about three inches lower than on the other car that one of the deadwoods on the moving car was out of repair, and in an unsafe and dangerous condition, which fact was unknown to the plaintiff, one of the bolts which fastened the deadwood to the car being broken, or the nut belonging thereon off, so that the outer end of the bolt was at the time loose, and projected from the surface of the deadwood about four inches, making the same extremely dangerous; that in the attempted coupling the plaintiff's arm and sleeve were caught by the bolt, and firmly held until the deadwoods came together, forcing the bolt through, and crushing and mangling the arm so that amputation was necessary. It is alleged to have been 'the duty of the defendant to have and keep said car in good and safe repair and condition while the same was being so switched, used, run, and hauled by defendant. ' Breaches of duty and acts of negligence are alleged as follows: (1) 'Yet the defendant did not regard its duty or use due care in that behalf, but on the contrary at the time aforesaid, did carelessly and negligently permit and allow said car to be switched, run, and hauled upon said railroad and in said yard, and used in making up said train while the said deadwood thereon and said bolt therein were unsafe, defective, broken, out of repair, and in a dangerous condition as aforesaid.' (2) 'That such improper, unsafe, and dangerous condition of the car aforesaid was the result of negligence upon the part of the defendant in keeping and allowing said car upon its tracks, or allowing it to go into its trains or into its yards, or allowing it to be switched or used by its employes in any manner while in such unsafe and dangerous condition; by allowing the same to pass through its yards without examining the same with sufficient care to ascertain whether the same was in proper and safe condition for the use of its employes; by not having the car repaired at said yard, to examine such car, and by not having an examination made of said car by its employes to determine whether the same was in a safe or unsafe condition; by allowing the same to go into the hands of its yard employes without examining the same, or without having the same examined, and without having the same put in proper condition and repair; and by allowing it to be in such improper condition and repair in its yards, knowing it would have to be handled by its employes; and each of the above is made a specific ground of negligence upon the part of the defendant. ' Upon the close of the evidence the plaintiff moved the court to direct a verdict for the defendant, and, that motion having been denied, thereupon asked the following instruction, '(1) You are instructed by the court to find a verdict in this case for the defendant'; and, that having been refused, asked, successively, as the bill of exceptions shows, other special instructions, numbered 2, 3, 4, and 5, each of which the court refused. Exception was duly saved to each of these rulings, and also to parts of the charge given, numbered from 1 to 15, and error has been properly assigned upon each exception.

Robert Dunlop and Eldon J. Cassoday, for plaintiff in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge, after making the foregoing statement, .

In the interest of brevity and clearness, it is to be observed that the assignment of error in this record contains much redundant and irrelevant matter. The first specification is that the 'court erred in denying defendant's motion at the conclusion of all the evidence to instruct the jury to find a verdict for the defendant. ' That would have been enough, because it states succinctly just what action is alleged to have been erroneous. But there follows a statement at length of four reasons why the motion should have been sustained. They constitute a good brief, but in the assignment of error are irrelevant. There is also a proper assignment upon the refusal of each request for instruction, but followed in each instance by the statement, quite necessary to be found in a bill of exceptions, namely, 'to which ruling * * * defendant then and there duly objected and excepted,' etc. Railroad Co. v. Mulligan, 14 C.C.A. 547, 67 F. 569, 34 U.S.App. 1. So, too, after each specification of error upon the charge of the court, there is a like out of place statement, not only of the exception, but of the grounds of objection. We think it would be the better practice if the grounds of objection to an instruction were required to be disclosed at the time of objection, and so stated in the bill of exceptions; but elsewhere, unless it be in the briefs, such a statement can by only an incumbrance of the record.

The declaration if framed upon the theory that, in respect to the cars which the plaintiff was coupling when injured, the defendant owed him the ordinary duty which a railroad company owes to its employes engaged in handling its own cars, or the cars of other companies in use upon its lines. It is alleged that the plaintiff was assisting 'in making up a train of freight cars for the defendant,' that the two cars which he was coupling were 'part of the train or trains operated upon defendant's line of railway,' and 'that it became and was the duty of the defendant to have and keep said car in good and safe repair and condition ' Of that duty only is any breach alleged. The case proven, however, if the evidence tends to establish a cause of action upon any ground, is distinctly different. It appears that the car which was out of repair, and which was of the Delaware, Lackawanna & Western make, came from another road, known as the 'Three I,' into the Santa Fe yards...