Chicago & E.R. Co. v. Ponn

• Decision Date: 07 November 1911
• Docket Number: 2,103.
• Citation: 191 F. 682
• Parties: CHICAGO & E.R. CO. v. PONN.
• Court: U.S. Court of Appeals — Sixth Circuit

191 F. 682

CHICAGO & E.R. CO. v. PONN.

No. 2,103.

Circuit Court, of Appeals Sixth Circuit.

November 7, 1911

[Copyrighted Material Omitted]

Action for damages for the alleged wrongful death of the decedent defendant's employe.

Ponn, a boy 17 years and 8 months old, was in the employ of the Chicago & Erie Railroad Company, at Marion, Ohio, as a laborer at and about its turntable and roundhouse. His employment began 8 or 10 days prior to the accident which caused his death. A part of his duties was to assist in turning the table upon which locomotives were run and turned to give the direction desired in taking them into the roundhouse after a trip, or from the roundhouse prior to beginning a trip.

His duties began at 6 in the evening and ended at 6 in the morning. The turntable was old, and was installed in a pit which had theretofore been used for another turntable. It consisted of two girders carrying the track upon which the engines were run. The girders rested on a disc at the center turning upon some 16 rollers, operating in a circular channel, the center construction resting upon solid masonry. Underneath the girders at their ends were rollers coming in contact with a circular track in the pit. This was not for the purpose of carrying the weight in turning, but to uphold and support the ends of the girders when an engine was run upon of from the table. The table at the time of the accident was used to turn 35 to 40 engines a day--many of them at night. For 8 or 10 nights prior to the accident the boy Ponn had assisted in the operation of turning engines. When an engine was to be turned, it was run upon the turntable and balanced there, or 'spotted,' as it was called; the engine being disposed in such a way that the center of equilibrium would be at or near the center of the turntable. With all of the engines in use at that time and turned on this table, excepting two, the diameter of the table was of sufficient length to permit them to be spotted in such a way that no part of the engine projected over the edge of the turntable and the pit in which it operated. On the adjacent ground there were some 10 sets of tracks leading from the turntable to the stalls of the roundhouse, or forming the tracks of the main line, as it is called, leading off toward the tracks upon which the engine made its trips. A part of such adjacent ground had no tracks upon it, and there was no board walk or other walk on the land adjacent to the turntable; the ground being level with the tops of the ties, thus leaving the rails their full height above the ground.

Two of the company's engines of recent type were longer than the others. The pilot of a long engine, when spotted, projected certainly as far as three feet over the periphery of the turntable, and it may be as much as five feet on the night when the accident occurred. Near the end of the tracks at each end of the table, there was a handbar or lever fastened to the table in such a way that it reached out above the surface of the rails and inclined outwardly and obliquely therefrom. The table was turned by pushing upon these levers. There were two ways of pushing upon the lever when one of the longer engines was being turned. One was by facing the side of the projecting pilot and pushing, in which case the operators followed the pilot; an operation involving no danger. This is described in the case as the 'right' way. The other way of pushing was to get between the lever and the pilot, and push with the pilot following. This is called in the case the 'wrong' way. As the pilot came to a point called the nose and the bar proceeded obliquely from the line of the turntable track, there was, when one of the large engines was being turned, a wedge-shaped space between the lever and the pilot. In practice the operators were accustomed to turn the large engines the 'wrong' way. The reason for this was that in turning such engines the table turned the 'right' way with great difficulty, and sometimes would not turn at all. On one occasion an engine on one of the other tracks was used, by attaching a chain to the engine to be turned, to pull the turntable around by main force. On the night in question, at 2:30 o'clock, when the operators, including Ponn, started to turn the large engine the 'right' way, they were unable to do so, and thereupon pushed it the 'wrong' way, and , when they came to the first track projecting above the level of the ground, Ponn probably caught his foot on the rail, was struck by the pilot following, and was fatally injured between it and the rail.

Only one long engine was turned each night. There were no fixed lights at or near the turntable. The headlight of the locomotive case its light forward, and not down. There was evidence tending to show that some, at least, of the men carried lanterns. Just why to a certainty the table turned with difficulty, or not at all, when pushed the 'right' way during the operation of turning a large locomotive, does not appear. One of the witnesses laid the fault to a broken roller. That was a mere conjecture. It is very probable, and the testimony warrants the inference, that, when the larger engines were attempted to be balanced or spotted, the center of equilibrium was located some distance beyond the center of the table and toward the pilot end projecting three to five feet over the periphery. Under such circumstances the operation of turning would naturally be attended with difficulty, though why the table turned more easily one way than the other does not appear.

On the night in question Ryan and Landon, employes in similar service with Ponn, one of whom had been engaged in that service for many years, men of mature years, handling the lever at the pilot end, and another employe at the opposite lever, after attempting to push the engine the 'right' way and failing, thereupon pushed it the 'wrong' way. Ryan was near the end of the lever, Landon next to him, and Ponn next and nearest the engine. No part of the pilot was behind Ryan and Landon, while Ponn had immediately behind him about a foot of the projecting pilot. The distance between the rear of Ponn's feet and legs and edge of the pilot was not shown, but was said to be short. One Berger, who had spotted the engine, came down to assist in the operation by placing his hands on Landon's hips and pushing. The operation of turning was usually performed by four men-- three at the pilot end.

Plaintiff charged negligence, in that defendant failed to afford safe machinery and appliances with which Ponn was required to work, and a safe place wherein to work, and in failing to provide a proper and sufficient turntable for the use to which it was put on that night, and for a long time prior thereto; in that the table was unsuitable for the use of locomotives of improved type, such as the two locomotives referred to were; in that the levers and handbars were maintained in dangerous proximity to the tracks on the table, which was known to the defendant; in that no platform or path around the pit in which the turntable stood was provided, so that the surface of the rails would not project above the ground; in that no good, or sufficient, or any, means of lighting up the turntable was provided, and in that no sufficient number of hands was employed or additional arms or handbars were provided for the use of additional men.

For its defense the defendant alleged that Ponn had full knowledge of the conditions surrounding his work, including the fact that the pilot of large locomotives extended beyond the table and of all of the dangers connected with his employment, and, with such knowledge, assumed the risk of injury; and, further, that his injury was due to his own negligence.

The case being submitted to the jury, a verdict of $4,000 for plaintiff was returned.

At the conclusion of the testimony defendant moved for a directed verdict on the ground that plaintiff was shown to have assumed the risk and to have been guilty of contributory negligence. The motion was overruled. Defendant moved for a new trial on the grounds that the motion for a directed verdict should have been granted; that the verdict was contrary to law and against the weight of the evidence; that it was excessive; and that the court erred in admitting certain evidence which is considered in detail in the opinion. The motion was overruled. The assignments of error involve the questions raised on these motions, the acts of the court in refusing to charge the jury in certain respects requested by counsel for defendant, and in charging the jury in certain other respects. All of the matters complained of are disposed of in the opinion.

Frank Lewis (W. O. Johnson and Doyle & Lewis, on the brief), for plaintiff in error.

H. N. Quigley (Mouser & Moloney, on the brief), for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and HOLLISTER, District judge.

HOLLISTER District Judge (after stating the facts as above).

When it appeared in evidence that the turntable was of insufficient size to accommodate the longer and heavier engines of the kind which once each night was turned on it, that it was more difficult to balance such an engine, that the pilot of such an engine projected about five feet beyond the rim of the table, that turning the table the 'right' way with such an engine on it was attended with great difficulty, if it could be turned at all, and that it was the practice, in which the foreman sometimes participated, to turn such an engine the 'wrong' way-- the jury were justified in reaching the conclusion that the turntable could not properly do the work required of it when such engines were turned that turning it the 'wrong' way necessarily exposed the employes operating the table to some...