Chesapeake & O.R. Co. v. Hennessey

• Decision Date: 03 October 1899
• Docket Number: 665.
• Parties: CHESAPEAKE & O.R. CO. v. HENNESSEY.
• Court: U.S. Court of Appeals — Sixth Circuit

96 F. 713

CHESAPEAKE & O.R. CO. v. HENNESSEY.

No. 665.

United States Court of Appeals, Sixth Circuit.

October 3, 1899

Where a servant has notice of the general risks and dangers of his employment, such as that many of the cars which he is required to handle as a switchman are defective, the master is not guilty of negligence in failing to notify him of each particular defect, as such duty, if required, is one necessarily devolving on fellow servants, for whose particular acts of negligence the master is not responsible.

James M. Hennessey was foreman of a switching crew employed in the yard of the Chesapeake & Ohio Railroad Company at Russell Ky. While engaged in making a coupling in the yard of the company, he sustained an injury. This suit was brought to recover damages for the injury so sustained. Russell was the end of a division. All cars passing there were inspected. For this purpose two inspectors were employed. As many as six or eight hundred cars pass Russell each day. When a car was found to be defective, it was marked on the sides 'Shop.' This signified to the yard master that the car must not proceed, but must be taken out of the train, and placed on the shop or repair tracks. These were two in number, and known as tracks '8 and 9,' or 'Shop' or 'Repair' tracks. These were spur tracks, and were entered only from the western end. Each track held about 25 cars. Cars, when placed on these shop tracks, were cut so that each car stood separated by two or three feet from every other car. Cars, when placed on these tracks, were inspected by the foreman of repairs. If the defect was one which could be repaired at Russell, it was repaired where it stood. If so seriously defective as to be more advantageously repaired at Huntington, which was near by and the location of the general shops of the company, it was chalked 'Huntington Shop,' 'Transfer.' This meant that the car was to be forwarded to Huntington, as too defective for repair at Russell. The foreman of repairs determined whether the repair should be made a Russell or Huntington. It was the business of the switching crews to take all cars marked 'Shop,' or otherwise withdrawn from use, place them on the shop tracks. It was likewise their duty to pull out from the shop tracks all cars which had been repaired, or which were to be sent to Huntington for repairs, and place all such cars upon proper tracks for forwarding. This was done under the general order and direction of the yard master. Cars which had been repaired were chalked by the foreman of repairs 'O.K.,' and were locally called 'O.K.'D cars. A blue flag was placed upon the car at the western end of these shop tracks. This meant that repairs were going on, and that no engine or moving car was to come in contact with the cars on such tracks while the blue flag was up. Once a day, and sometimes oftener, this blue flag was taken down by direction of the yard master, and all cars O.K.'D or chalked for Huntington were pulled off by the switching crews, and placed on proper tracks to be carried to destination. Mixed in with O.K.'D cars would be cars not yet repaired. This necessitated the coupling of all the cars standing on the track, the pulling out and separation of cars to go on, and the 'kicking back' of cars not yet repaired. There were two switching crews employed in this yard. Hennessey had been employed on one of these crews for about three years. At the time of his injury, he was foreman of one of the crews. All the switching necessary in the yard was done by these crews. This involved the making up of trains and the disintegration of such as had at Russell their terminus. It also involved the handling of all defective or improperly loaded cars, and the handling of the cars standing on the shop tracks for the purposes already mentioned. It was also the business of the inspectors to order out of trains all cars which appeared to be improperly loaded, and detain them to have loading readjusted. Improperly loaded cars were also placed on the shop tracks, when there was room, and their loading there corrected. There was some conflict in the evidence as to whether such improperly loaded cars were marked 'Shop' or not. Hennessey was engaged in 'pulling' the cars on repair track No. 9 at 4:15 p.m., January 30, 1897, when he was injured. The two cars at the rear or east end of that track were numbered respectively, 10,845 and 14,694. The latter was the rear car, and had been O.K.'D. Car 10,845 was the next car, and was a flat car loaded with bridge stone. This car (No. 10,845) arrived in the yard at noon, January 28th, from a point west of Russell, and was destined to a point east of Russell. This car on the 29th was seen upon a track called the 'Pit Track,' which led only to a gravel bank. While on that track it was seen by Hennessey, though he was not nearer to it than 125 feet. He says that from where he saw it he could see that the stone with which it was loaded was projecting over one end some 2 or 2 1/2 feet. That car, on the night of the 29th, was placed upon the shop track, where Hennessey next saw it just as he was about to couple it to the car next east, being the empty O.K.'D gondola car No. 14,694. Hennessey and another, by direction of the yard master, were coupling the whole train of cars standing on repair track No. 9, in order to get out the O.K.'D cars to be put in trains and forwarded. They began to couple from the west or front end of the track, and had coupled all but the last two cars. Hennessey passed down along the cars until he reached the gondola, when he placed a link in its drawhead, and stood waiting for the approach of car No. 10,845. It came toward him slowly. He saw, he says, that it was the car he had seen on the pit track the day before, and that its load projected over the east end. He stooped to avoid the projecting stone, and guide the link into the slot of its drawhead. The link missed the slot, struck the surface of the drawhead above the slot, bent, and crushed his fingers. This mishap was due to the fact that the drawhead of the car was from two to three inches below the drawhead of the stationary car in which he had pinned the link. This difference in the height of the two drawheads was due to the defective condition of car No. 10,845. Upon subsequent examination, it appeared that five of the six sills running lengthwise under the floor of the car had been broken, causing the floor to sag to one side, and one end some two or three inches, carrying down with the sagged end the drawhead in which Hennessey undertook to place the link he was guiding. Hennessey says that he had not observed this defective condition of this car, and supposed it was simply a defectively loaded car, and had been put on the shop track for that reason. He says the projection of the load over the drawhead and the cloudiness of the evening prevented him from seeing the condition of the drawhead. There was no evidence as to why this car had been stopped at Russell, other than that deducible from its condition, its load, and the track on which it was placed. Shortly after the accident the car was found to be chalked, 'Huntington Shop,' 'Transfer,' but there was a conflict in the evidence as to whether it had been so marked before or after the accident. There was a verdict for the plaintiff below. The railroad company has sued out this writ of error.

A. M. J. Cochran, for plaintiff in error.

T. N. Ross, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

LURTON Circuit Judge, after making the foregoing statement of facts, .

If the railroad company is liable to Hennessey, upon the undisputed facts of this case, it must be either because it was negligent in permitting the car in question to be and remain in the damaged and dangerous condition it was when Hennessey, in the course of his duty, undertook to couple it to another car, or because it was negligent in not giving to Hennessey notice of that condition before allowing him to make the coupling.

1. Was the company responsible for the condition of the car which Hennessey was hurt in coupling? There is no positive evidence as to when or how the car was damaged or its load displaced. But whether the car had been damaged on the road or in the yard, or the load become displaced before or after it reached the yard, the car had in fact been withdrawn from use, and placed upon the tracks devoted to damaged or improperly loaded cars. The presumption is that it was placed there, not only on account of its displaced load, but also because of its defective condition. In the view we take of the principles of law which govern the case, it is unimportant whether it was placed there for both reasons or only one, and equally unimportant whether the damaged condition had been discovered by the inspector before it was sent to the shop track or not. The fact is, a badly damaged car, with a badly displaced load, displaced, presumptively, as a consequence of the defective character of the car, was standing upon a track devoted primarily to damaged cars. What was the significance of the fact that this car was standing upon the shop or repair track? Hennessey was an old employe. He had worked in this yard for about three years, and was the foreman of his crew. He knew the uses to which tracks 8 and 9 were devoted. That occasionally a car neither defective nor badly loaded was found upon that track is of no moment. The primary use of those tracks was for the storage and repair of damaged cars. From six to eight hundred cars lent through this yard every day. They were there stopped and inspected. Cars damaged were taken out from the trains, and placed on one or the other of these tracks. When full, as sometimes happened, such cars...