Bailey v. Cent. Vt. Ry., Inc.

Decision Date04 November 1942
Docket NumberNo. 1692.,1692.
Citation28 A.2d 639
CourtVermont Supreme Court
PartiesBAILEY v. CENTRAL VERMONT RY., Inc.

Exceptions from Washington County Court; Orrin B. Hughes, Judge.

Action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq, by. Florence J. Bailey, administratrix of the estate of Bernard E. Bailey, deceased, against Central Vermont Railway, Inc., to recover damages for death of decedent while in defendant's employ. Defendant's motion for a directed verdict made at the close of all the evidence was overruled, and defendant brings exceptions.

Judgment reversed and judgment for defendant to recover costs.

Before MOULTON, C. J., and SHERBURNE, BUTTLES, STURTEVANT, and JEFFORDS, JJ.

J. Ward Carver, of Barre, for plaintiff.

T. Tracy Lawson, of Barre, and Horace H. Powers, of St. Albans, for defendant.

SHERBURNE, Justice.

This action is brought under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq, to recover damages for the death of Bernard E. Bailey resulting from attempting to open one of the hoppers of a coal car loaded with cinders at a dry bridge over a farm crossing about a mile and a half south of defendant's Williston station. The declaration alleges failure to provide a safe place to work, failure to furnish proper tools and appliances with which to open the hopper, failure to caution and warn Bailey of the dangers incident to the operation of opening the hopper, and failure to allow him sufficient time in which to perform the operation. Among other things the defendant pleaded the general denial and assumption of risk. At the close of all the evidence the defendant moved for a directed verdict on the ground, among other things, of failure to prove negligence on the part of the defendant and saved exceptions to the action of the court in overruling its motion.

Viewing the evidence in the light most favorable to the plaintiff, the following facts were fairly and reasonably within its tendency: Bailey, a capable and efficient workman, was about 25 years of age at the time of the injuries resulting in his death and had been a member of defendant's section crew at Montpelier Junction for about five years. A few days before the accident, Bailey's section foreman instructed him to go on what is known as a work train, and on the morning of the accident he and one other member of his section went on this train to Williston, and were joined by the crews of the Bolton, Richmond and Williston sections. The train consisted of an engine, van, several cars containing track material, a derrick, and a hopper car of cinders. During the day they were engaged in unloading track material. In the late afternoon the hopper car was spotted on the dry bridge in such a position that it would dump the cinders through the railroad ties directly onto the roadway below the bridge. This bridge was about 18 feet above the ground beneath it, and the ends of the railroad ties upon it extended about 12 inches beyond the outside of the car. Across these ties was fastened a stringer or guard rail 8 or 9 inches wide which was set in 3 or 4 inches from the ends of the ties. The hoppers of this kind of a car are closed by a chain, which winds up on a shaft running cross-ways of the car, with a squared end formed like a nut to which a wrench is applied. There is a ratchet on the shaft and a dog on the side of the car which engages in the ratchet and holds the shaft tight when the hopper has been closed. To unload the car a wrench is applied to the nut at the end of the shaft and the man operating the wrench pulls its handle back towards him in order that the dog may be released from the ratchet. When the tension has thus been taken off, another man standing on the opposite side of the mechanism releases the dog either with his fingers, or if it sticks, with a hammer. As soon as the dog is disengaged the man who does that steps back and the man holding the wrench pushes back on it to open the hopper. When the hopper starts to open the wrench must be disengaged or let go of or the operator may be thrown off balance. The wrench furnished for opening hoppers was what is known as a frog wrench. It was a one piece, straight, heavy iron wrench with jaws open at the end and with a handle about three feet long. This kind of a wrench had been used for many years by defendant's employees for this purpose and no one had ever been injured in its operation. No one had ever seen Bailey open a hopper. Such an operation was usually performed by the older men in point of service. Bailey had been present on a very few occasions when hoppers were opened, and on previous such occasions was usually on top of the cars shoveling down the cinders so as to completely empty the hopper. Other than what was said to him just before the accident he had never been instructed in the use of the wrench for this purpose. Cinders had been dumped at this bridge each year for a number of years to replace cinders carried away from the roadway underneath by high water. Although Bailey had worked upon a work train a number of times there was no evidence of his familiarity with the dumping of cinders at this bridge. After the car had been spotted at the bridge one Muir of the Williston section brought a shovel and frog wrench from a section motor car, and when he was about 60 feet from the bridge Bailey said to him "I can take the wrench, you can take the shovel and go up in the car," and Muir gave him the wrench. After the wrench had been handed to Bailey, Muir heard some one say "We had got just five minutes to unload the car", but he did not observe any hurry in unloading. After taking the wrench Bailey went out on the stringer on the bridge, and standing beside the car put the wrench on the nut of the car pocket and pulled the handle of the wrench towards him, while one Stone, foreman of the Richmond section, went to help him and stood on the stringer opposite him and loosened the dog with a hammer, and then stepped back so that when the wrench was let go it would not hit him. When Stone stepped back and as Bailey started to open the hopper he said "Be careful the wrench doesn't catch you", and Bailey answered "I will" or something like that. When this warning was hardly out of Stone's mouth, Bailey pushed the handle of the wrench towards Stone, but the hopper didn't open the first time, so he gave the wrench another push and that time it opened quickly, and Bailey went off the bridge and fell to the roadway below and received injuries from which he died. Stone had never seen Bailey before that day. In applying the wrench to the nut and pulling back Bailey acted properly without coaching, and Stone was of the opinion that he acted as if he knew how to operate the wrench in opening a hopper. No one directed Bailey to open the hopper. For the purpose of showing whether the defendant furnished Bailey with a tool reasonably safe and reasonably adaptable to the purpose for which it was used, the plaintiff offered, and the court received, over the defendant's objection and exception, as an exhibit, a Swaco safety hopper car wrench. This wrench has a shorter handle than a frog wrench, and the part that fits over the nut turns in a large casing. The direction that it can so turn is controlled by a ratchet. There is a slot in the casing where the operator can move a short lever with his fingers to reverse the direction. When turning up a nut the operator need not remove the wrench with each half turn as he must with a frog wrench, but at the end of the pull on the handle pushes back while the ratchet turns freely, and then when he pulls again the nut is turned further. It is plain enough that if the operator were closing the hopper of an empty car, where the nut has to be turned around several times, it could be done much more rapidly than with a frog wrench. As to whether this type of wrench is safer or better adapted to opening a hopper did not appear. One witness who had only used it to close hoppers said one of its purposes was to prevent the handle throwing when the nut on the hopper turns. Another witness who had used it to open hoppers said that his experience had been that it didn't operate too bad "if you didn't make a mistake and open the wrong ratchet; if you do, you are going places." This wrench costs $20 whereas a frog wrench only costs $1.50. It appeared that the defendant had purchased one of these wrenches before the time of the accident, and one afterwards, for use by the maintenance department in which Bailey was employed, as an experiment to see if it was any more useful than a frog wrench, and that the engineering department after a trial was uncertain whether the extra cost was justified. No section foreman had ever complained to the engineer in charge of the maintenance department about the usefulness of the frog wrench.

We are here dealing with a Federal statute which supersedes all state laws covering the same field. Mondou v. New York, N. H. & H. R. Co., 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327, 38 L.R.A,N.S, 44; Robey v. Boston & Maine Railroad, 91 Vt. 386, 389, 390, 100 A. 925. In proceedings under the Act the rights and obligations of the parties depend upon it and applicable principles of the common law as interpreted and applied in the Federal courts. Chesapeake & O. R. Co. v. Kuhn, 284 U.S. 44, 52 S.Ct. 45, 76 L.Ed. 157; Robey v. Boston & Maine Railroad, supra. The basis of recovery is negligence, without which no right of action is given under the Act. Chesapeake & O. R. Co. v. Stapleton, 279 U.S. 587, 49 S.Ct. 442, 73 L.Ed. 861. The fact of accident carries with it no presumption of negligence on the part of the employer, and it is an affirmative fact for the injured employee to establish that the employer has been guilty of negligence. New York Central R. Co. v. Ambrose, 280 U.S. 486, 50 S.Ct. 198, 74 L.Ed. 562; Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513.

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