Carolina C. & O. Ry. Co. v. Stroup

• Citation: 239 F. 75
• Decision Date: 06 February 1917
• Docket Number: 2899.
• Parties: CAROLINA, C. & O. RY. CO. v. STROUP.
• Court: U.S. Court of Appeals — Sixth Circuit

239 F. 75

CAROLINA, C. & O. RY. CO. v. STROUP.

No. 2899.

United States Court of Appeals, Sixth Circuit.

February 6, 1917

J. R Simmonds, of Johnson City, Tenn., for plaintiff in error.

Robert Burrow, of Bristol, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge.

This was an action to recover damages for personal injuries sustained through alleged negligence of the railway company. The action was brought and concededly was maintainable under the federal Employers' Liability Act (Act April 22, 1908 c. 149, 35 Stat. 65 (Comp. St. 1913, Secs. 8657-8665)); and the plaintiff below recovered verdict and judgment for $2,500. The evidence is embodied in the record, though the court's charge to the jury is not. At the close of all the evidence the railroad presented motion to direct a verdict in its favor; this motion and also a motion for new trial were denied. The railroad prosecutes error. The only question presented here is whether the verdict can be sustained upon the evidence.

The plaintiff below, Stroup, was a brakeman on a freight train of 80 cars, and the injury occurred in the railroad yard at Bostick, N.C. Stroup had been previously told to cut 18 cars out of the forward portion of the train upon reaching Bostick, and to take them from track No. 2, on which the train would enter the yard, and set them on track No. 1. These two tracks were maintained along north and south adjacent lines, track No. 1 lying on the west of track No. 2. The switch connection led from track 2 northwardly into track 1 and was quite a distance south of the point at which the train was to enter the yard; this required the train partially to pass the switch point before the cars to be cut out could be conveniently released from the train and backed into track No. 1.

The train entered the yard from the north on track 2 about 4 o'clock in the morning of December 2, 1914, and continued southwardly until the eighteenth car reached the clearing post, which stood between the tracks and some 200 feet north of the point of the switch leading northwardly, as stated into track 1. Admittedly, the execution of Stroup's order required him to go between the ends of the eighteenth and nineteenth cars to separate the air hose; and Stroup testified that before reaching Bostick he advised the engineer of the order to cut out the 18 cars. While the train was approaching the place designed to carry out the order and moving slowly, Stroup, with his lantern, signaled the engineer to stop. The engineer cut off the steam, but seemingly failed to apply the brakes. Stroup says, however, that the train stopped-- 'at least the 18 cars had stopped'; that he stepped between the eighteenth and nineteenth cars to part the hose, and turned the angle cock on the car nearest to the engine; that he 'was fixing to turn the one on the other car when the cars (that is, the rear cars) began to move ahead; * * * the rear part of the train moved up on me and caught me.' It is here that the issue of fact arises.

The railroad contends that under the existing physical conditions, if the front portion of the train, comprising 18 cars, had in truth stopped, the rear portion could not have 'moved up' and 'caught' Stroup-- in other words, that in view of the grade of the track the theory of stoppage of the front portion of the train and continued movement of the rear portion is opposed to the law of gravity-- and hence that Stroup must have gone between the cars while the train was in motion, and in violation of a rule of the company with which he was admittedly familiar. Evidently, then, the grade of the track and the potential slack in the rear portion of the train form the basis of the controversy. The negligence alleged in the declaration is that the engineer stopped the train 'on a dip in the road, without applying the air brakes on said train, by reason whereof said train, moving by gravity, started while plaintiff was between two cars and before he could extricate himself from his dangerous position was caught and crushed,' etc. Among other features of Stroup's testimony this appears in respect of the alleged 'dip' in the track:

'If a car is turned loose without brakes on and left to gravity at 'B' (meaning the clearing post before mentioned between tracks No. 2 and No. 1, and the point where the accident occurred), it will roll to the center of the track there; a car will drop back there in the direction from which we came, that is, north. Q. If that is true, what was it, or why, I will ask you, why was it these 62 cars back on this end dropped in toward you and caught you? Why would they drop in that direction? A. We pulled in there, and the slack, I guess it was, out there in those rear cars, and it shoved up. The way that track is

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