Baltimore & O.R. Co. v. Newell
| Decision Date | 10 June 1912 |
| Docket Number | 27 (1,594). |
| Parties | BALTIMORE & O.R. CO. v. NEWELL. |
| Court | U.S. Court of Appeals — Third Circuit |
Allen T. C. Gordon, of Pittsburgh, Pa., for plaintiff in error.
F. H Guffey, of Pittsburgh, Pa., for defendant in error.
Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.
The defendant in error (hereinafter called the plaintiff) was for several years prior to May 6, 1909, employed by the Baltimore & Ohio Railroad Company, plaintiff in error (hereinafter called the defendant), in the capacity of a freight brakeman in the freight yards of the company, situate at Connellsville, Pa.
About 6 o'clock on the evening of the day last named, while the plaintiff was employed as a member of a shifting crew in said yards, it became necessary to shift cars onto a certain side track, a portion of which extended along a freight platform built in front of a freight station. This platform was about four feet in height above the rail, so built for the obvious purpose of being flush with the floors of the freight cars placed in front of it for loading or unloading. The length of the platform in question was about 130 feet. The westerly end of the platform is 71 feet east of the switch connecting the main track and the side track. The side track ran along the south side of the platform, and the distance between the side of the car in question and the platform was between 6 and 8 inches.
The plaintiff had worked as a brakeman for the defendant company for about six years. On the day of the accident, he was working as a brakeman of a switching crew consisting of a conductor, two flagmen and himself. This crew were engaged in switching cars out for a fast freight train that was to take them up. In the performance of this duty, it became necessary for the plaintiff, who was stationed at the first switch above referred to nearest the freight house platform, and 71 feet away from its western end, to throw the switch and admit some cars which were being pushed east from the west bound main track onto the siding in front of the freight platform. Just before the plaintiff threw the switch, the conductor of the train ordered some one of the crew to cut one car away from the draft of cars being pushed onto the siding. After this order was given, plaintiff threw the switch, at which time, as he faced east, he was on the left side of the track (the side nearest to the south side of the freight platform) and one of the flagmen was on the opposite side. The plaintiff did not know whether or not any other cars stood in front of the freight platform, and says he did not look to see. He testifies that he stood at the switch as the car to be cut out passed him and saw the flagman working with the lever on the opposite side of the track from where he was standing, and, thinking that he could not 'cut' the car, stepped in to help him. There seems to have been some confusion in the orders given by the conductor, who, having first ordered one car to be cut off, afterwards, and while the plaintiff was between the cars, though outside of the rail, ordered two cars to be cut out. But the facts in regard to this are immaterial. The flagman on the opposite side of the cars, having stepped out owing probably to the change in orders,-- the plaintiff, probably misunderstanding the order, remained where he was, trying to uncouple the last car from the rest of the draft, by means of the uncoupling lever. In doing this, though his feet were outside the track, he was necessarily between the projecting bodies of the freight cars and walked along with the rapidly moving cars the whole distance from the switch to the west end of the freight platform, and, as he testifies, some 15 or 20 feet alongside the platform. He then observed that, though he had lifted the coupling pin, the cars did not separate, and stepped back to see why, when he was caught between the moving car and the platform and received the injuries complained of.
On this state of the case, suit was brought in the court below, the plaintiff alleging that the injuries he received were due to the negligence of the defendant. In support of this allegation, the well-settled doctrine is invoked, that it is the duty of an employer to furnish a reasonably safe place in which the employe is required to work, and reasonably safe tools and appliances with which to work. After the close of the evidence, which elicited the material facts above stated, counsel for defendant requested the court to charge the jury that 'the plaintiff has produced no evidence legally sufficient to charge the defendant with the negligence alleged in his declaration, and cannot recover'; also, 'that under all the evidence, the verdict must be for the defendant.' The court then submitted the case to the jury, with an oral charge, and from the judgment on the verdict in favor of the plaintiff, the present writ of error has been sued out by the defendant.
The first two assignments of error refer to the refusal to charge requests above stated....
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