Baltimore & O.R. Co. v. Flechtner
| Decision Date | 06 June 1924 |
| Docket Number | 3986. |
| Citation | 300 F. 318 |
| Parties | BALTIMORE & O.R. CO. v. FLECHTNER. [1] |
| Court | U.S. Court of Appeals — Sixth Circuit |
J. P Wood and W. T. Kinder, both of Cleveland, Ohio (Tolles Hogsett, Ginn & Morley and J. W. Reavis, all of Cleveland Ohio, on the brief), for plaintiff in error.
Louis H. Winch, of Cleveland, Ohio (Payer, Winch, Minshall & Karch of Cleveland, Ohio, and Nash & Henslee, of Garrett, Ind., on the brief), for defendant in error.
Before DENISON, MACK, and DONAHUE, Circuit Judges.
Writ of error from judgment for $28,354 for personal injuries. Plaintiff, at the time of the injury, 10:30 p.m., was engaged as a brakeman in defendant's classification yards at Willard, Ohio, in making up a train on track No. 9, scheduled to go out at 6:30 o'clock the next morning. The tracks in this yard are used for switching purposes; the cars are left on a hump or elevated track for switching, and are then run down to one or more of the 22 tracks which spread out like a fan and parallel each other. Some 40 cars had already been placed on this track; some of them were loaded with freight destined, according to the wheel report, hereinafter considered, to points outside of Ohio. The last cut of cars switched onto track No. 9 to make up this train, consisted of a number of hopper cars, all empty, except one, and all destined for points within Ohio. Plaintiff rode the fourth or fifth car from the head end of these cars, some 12 or 15 car lengths, until it bumped into the standing cars; then he alighted and started forward on the pathway between tracks 8 and 9, intending to couple together the cars last sent down and the ones into which they had bumped, and to see that all cars in the train were coupled together. He had walked 3 or 4 car lengths when the cars started to move ahead; he knew from this that the engine had come down from the hump, coupled onto the west end of the cut, and was pushing the train down onto track No. 9, so that it would clear the switch. He gave a signal to the engineer to stop, so that he could see, when the cars stopped and the slack ran out, whether or not they were all coupled together. After he had given the signal, he took a few steps, when his foot caught in a hoop in the path; he was thrown headfirst in towards the cars, grasped the handle on the side of one of the moving cars, and was dragged half a car length; his feet struck a plank alongside of the track; one foot was thrown onto the rail, run over, and crushed.
There is evidence that, while the yards are not fenced in, the public did not come there; that the hoop was rusty on both sides, observed to be as rusty at the time of the injury as at the time of the trial; that it was of the kind used on kegs holding railroad spikes.
1. If there was admissible evidence that some of the cars in the train were destined to points beyond the state of Ohio, we are of the opinion that under the authorities cited in the case of B. & O.R.R. Co. v. Kast (C.C.A.) 299 F....
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