Chicago, M. & St. P. Ry. Co. v. Riley

• Citation: 145 F. 137
• Decision Date: 10 April 1906
• Docket Number: 1,223.
• Parties: CHICAGO, M. & ST. P. RY. CO. v. RILEY.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

145 F. 137

CHICAGO, M. & ST. P. RY. CO. v. RILEY.

No. 1,223.

United States Court of Appeals, Seventh Circuit.

April 10, 1906

Chas B. Keeler, for plaintiff in error.

James C. McShane, for defendant in error.

The defendant in error brings this suit to recover damages for personal injuries received on or about June 1, 1904. Riley had been in the service of the Chicago, Milwaukee & St. Paul Railway Company about nine years at different places in its Western avenue switch yards, and for two months he had been foreman or conductor in charge of the switch crew, operating among other switches, switch known as No. 3, by means of which he alleges the accident occurred. He worked from 7 in the morning until 6 o'clock in the evening, and in the discharge of his duties threw said switch very frequently preceding the accident, the handle or arm depended from the stand on the east side thereof, and hung practically perpendicularly, resting in a slot, and hugging the switch stand. To throw the switch, defendant in error stood on the east side of the switch stand, reached down and seized the handle, raised it until it stood at a right angle to the switch stand, and then pushed it horizontally towards the north, 90 degrees. When the desired switch connection is made, the handle, released from the grasp of the operator's hand, drops again into a perpendicular position at that place, and is thereby set. The switch stand is one of a series of seven stands controlling several lead tracks. The switch stands were situated between two tracks, one known as the 'rip lead track' on the south, upon which, with its connecting side tracks, defendant in error was employed as foreman of a switching crew engaged in sorting and distributing freight cars to the different side tracks, and the other or northern track known as the 'passenger yard lead,' over which passenger trains were moved to and from the storage yard lying to the west. The switch stands were used in connection with the rip lead track and its branches, and in the sorting of said cars, defendant in error had occasion to throw some one of said switches as often as one in each 10 minutes during the day. The distance between the passenger lead and the rip lead at switch No. 1 was 7 feet 10 3/4 inches; at switch 2, 7 feet 8 inches; at No. 3 (here involved), 7 feet 9 inches; and at No. 4, 8 feet 4 3/4 inches. At the other three switches the distance was much greater, owing to the curving of the track. The center of switch stand No. 1 was 4 feet 3 inches from the nearest rail of the passenger lead, and 3 feet 8 3/4 inches from the nearest rip lead rail. The center of switch stand No. 2 was 3 feet 1 inch from the nearest rip lead rail, and 4 feet 7 inches from that of the passenger lead. The center of switch stand No. 3 was 3 feet 9 inches from the nearest rail of the passenger lead, and 4 feet from the rip lead rail. The center of switch stand No. 4 was 4 feet 7 1/2 inches from the nearest passenger lead rail, and 3 feet 9 1/4 inches from the rip lead rail. The switch handle extended 21 inches from the center of the stand, and when raised was 14 inches above the base of the stand. This switching device had been in operation at that point for more than eight years, and no accident had theretofore occurred from its use. On the day in question, the switch engine under the charge of defendant in error and one car were upon the rip lead track at switch stand No. 1, about 30 or 40 yards distant from stand No. 3, moving to the west and toward switch stand No. 3. At the same time the coaches of the Elgin accommodation train were being backed westward and toward switch stand No. 3 on the passenger lead track. Defendant in error was desirous of setting the one car from the rip track onto side track 3. Standing on the east side of switch stand 3, he raised the switch handle, which was 1 1/2 or 2 inches in diameter, until perpendicular to the switch stand, taking hold of the end of it with his thumb and forefinger so that they extended beyond the end of the handle half a finger's length or width (plaintiff uses both terms.) By the time he had moved the handle 90 degrees, or until it extended directly to the north, the Elgin train had backed up, and was passing from behind him to the westward, opposite the end of the extended switch handle. In some way, as he says, his hand was caught between the handle and one of the car steps of the Elgin train. The back of his hand, his forefinger, and his second finger were crushed. The thumb was not injured. He knew that the passenger train was approaching, but did not, he says, know that it would come hear enough to the handle end to strike it or touch his hand. There is no evidence tending to show that plaintiff in error or any of its servants knew from observation that the handle and steps of any of the cars would collide in passing. Some of the witnesses who had operated the switch had observed that the steps came very close to the handle, and had been careful to throw the switch handle, which was the act of a moment, while the body of the car between the steps was passing, to avoid the steps. Trains were passing on the passenger lead at short intervals all day long. There was a slight northward curve in the passenger lead at or near switch stand No. 3. Assuming this to be so, defendant in error says there would be a lateral swaying or side motion, tending to throw the end of the car nearer the switch. The car which caused the accident cannot be identified. After the accident, the yardmaster of plaintiff in error, Costello, caused three passenger coaches to be pulled to the switch stand in suit and stopped. The steps of the second car from the engine, when thus standing, would not clear the handle. The first car did clear. The cars used varied considerably in width, the latest patterns being the widest. By stipulation of the parties, four photographic views of the tracks and switch stands in the immediate vicinity of switch stand 3 were introduced, and are part of the record on review. In his declaration defendant in error plaintiff below, charged negligence on the part of the plaintiff in error in placing and maintaining the switch, and in failing to give notice to him that the same was too close to the passenger lead. No question is raised as to the pleadings. At the close of the evidence, plaintiff in error requested the court to direct a verdict for the defendant, which request the court refused, and exceptions were taken, which are now before this court, numbered 1 to 4, inclusive. Other exceptions were taken to the ruling of the trial court in giving and refusing instructions. Exceptions 14, 15, and 16 refer to the admission of certain evidence. There was a verdict and judgment for the plaintiff below, and the case is brought here for review.

Before GROSSCUP, BAKER, and KOHLSAAT, Circuit Judges.

KOHLSAAT Circuit Judge, after stating the facts, .

It is contended by plaintiff in error that the location and maintenance of switch stand No. 3 was an engineering problem and that therefore the question as to whether plaintiff in error was negligent in that respect should not have been submitted to the jury.

It appears that the accident occurred in what are known as the 'Western Avenue Yards' of the plaintiff in error; that these yards consist of a network of tracks, switches, and other appurtenances to railroad yards. It is manifest that, in order to secure the best results, there must be as great economy of space as is consistent with a reasonable regard to the convenience of business, such as the handling and storing of cars and locomotives, as well as to the reasonable safety of the employes. It cannot be said that a railroad company is required to arrange its tracks and yards mainly with a view to protect its employes. The object of railroad yards is to transact the business of the company. Employes should knowingly be subjected to no greater hazards, however, than are reasonably essential to the reasonable use of the yards. It is a matter of common knowledge that these places are very dangerous, and require the exercise of great caution on the part of those there employed. Defendant in error undertook and assumed all such hazards as were reasonably incident to his work. This doctrine is well stated in Randall v. B.&O. R. Co., 109 U.S. 478, 3 Sup.Ct. 322, 27 L.Ed. 1003. The court says:

'A railroad yard, where trains are made up, necessarily has a great number of tracks and switches close to one another, and any who enters the service of a railroad corporation, in any work connected with the making up or moving of trains, assumes the risk of that condition of things.'

Was the location and maintenance of the switch in question an engineering problem-- one which was arrived at as the result of engineering skill? In the case of Tuttle v. D., G. H. & M. Ry. Co., 122 U.S. 194, 7 Sup.Ct. 1168, 30 L.Ed. 1114, the court uses this language:

'We have carefully read the evidence presented by the bill of exceptions, and, although it appears that the curve was a very sharp one at the place where the accident happened, yet we do not think that public policy requires the courts to lay down any rule of law to restrict a railroad company as to the curves it shall use in its freight depots and yards, where the safety of passengers and the public it not involved; much less that it should be left to the varying and

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