Chicago, St. P., M. & OR Co. v. Arnold

• Decision Date: 20 May 1947
• Docket Number: No. 13397.,13397.
• Citation: 160 F.2d 1002
• Parties: CHICAGO, ST. P., M. & O. R. CO. v. ARNOLD.
• Court: U.S. Court of Appeals — Eighth Circuit

160 F.2d 1002 (1947)

CHICAGO, ST. P., M. & O. R. CO. v. ARNOLD.

No. 13397.

Circuit Court of Appeals, Eighth Circuit.

March 24, 1947.

Rehearing Denied May 20, 1947.

Alfred E. Rietz, of St. Paul, Minn. (Nye F. Morehouse, of Chicago, Ill., on the brief), for appellant.

William A. Tautges, of Minneapolis, Minn. (Eugene A. Rerat, of Minneapolis, Minn., on the brief), for appellee.

Before THOMAS, JOHNSEN, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

The appellee Arnold brought this action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., against the appellant railway company to recover damages for injuries received while in the employ of the railway company as a train brakeman. Arnold's right hand was crushed between the grabiron of a freight car on the side of which he was riding and the corresponding grabiron on the side of another freight car which the train crew, of which Arnold was a member, had placed upon an adjacent track immediately before the accident. A verdict in favor of Arnold for $30,000 was reduced with Arnold's consent to $20,000, and judgment in his favor entered accordingly.

Arnold charged the railway company with negligence causing his injury in failing to use ordinary care to furnish him a safe place to work and in failing to give him timely warning of the danger to which the railway company's negligence in the respect stated had exposed him.

The accident in which Arnold received his injury occurred at 1 o'clock in the afternoon of a clear day, at Bingham Lake, Minnesota. At the time of his injury Arnold was 30 years of age, and had been employed as a railway brakeman for about five years. The train on which he was working on the day of his injury was a mixed freight and passenger train, consisting of a passenger and baggage coach, a number of freight cars, and an engine. The members of the train crew were the locomotive engineer and fireman, the train conductor, and two brakemen. Arnold was the head brakeman which means merely that his duties required him to work near the engine or head of the train. The rear brakeman, Francis Kavanagh, was in charge of and directed the train movements at the time of Arnold's injury. In the work being done at the time of the accident Arnold was subject to the directions and orders of Kavanagh who was his immediate superior.

When the train reached Bingham Lake on the day of the accident, the passenger coach was detached and left standing near the railway station on a track referred to in the evidence as the Currie Maine Line. The engine with the freight cars attached proceeded in a westerly direction along the Currie Main Line until the train passed a switch leading to a track, referred to in the evidence as the elevator or team track, which parallels the Currie Main Line. The purpose of this movement was to enable the freight train to back on to the elevator track and leave several freight cars to be picked up by another train. Either Arnold or Kananagh threw the switches to permit the train to move on to the elevator track and gave the engineer the signal for the backward movement. The train was then pushed on to the elevator track until stopped on signal from Kavanagh, who cut off from the train the cars to be left on the elevator track. Afterwards, on signal from Kavanagh repeated to the engineer by Arnold, the engine with all of the freight cars, except those left on the elevator track, moved out on to the Currie Main Line to a point beyond the switch leading from the elevator track to the Currie Main Line. Arnold then threw the switches necessary to permit the train to back down the Currie Main Line in a westerly direction to the passenger coach which had been left at the station. When this movement of the train, which began on signal from Kavanagh repeated to the engineer by Arnold, had started, Arnold, on order from Kavanagh, mounted the stirrup on the side of the rear freight car attached to the engine, for the purpose of riding down to the passenger coach and seeing that the coach was properly coupled with the train and that the air connections were made. In doing so Arnold stood with his feet in the stirrup of the freight car holding to the grabirons on the side of the car. In this position the movement of the train back to the passenger coach carried Arnold by the cars which had been left on the elevator track which, as has been stated, was adjacent to and paralleled the Currie Main Line.

The clearance between the Currie Main Line and the elevator track was sufficient to permit Arnold to ride in the position he took on the side of the moving freight car without any danger of striking the cars on the elevator track if these cars had been pushed a proper distance down the elevator track. There was ample space on the elevator track for placing the cars in the clear of cars moving on the Currie Main Line. Unfortunately, however, the cars were not pushed a sufficient distance down the elevator track to permit the safe passage of Arnold in the position in which he was riding on the cars moving on the Currie Main Line. The cars on the elevator track had been stopped on the signal of Kavanagh at a point selected by him and at such a place on the elevator track that there was not sufficient clearance between them and the cars moving past them on the Currie Main Line. The rules of the railway company require that in operations of the character just described cars placed on the elevator or team track should be left at a point on the track affording safe and sufficient clearance between them and cars moving upon an adjacent track. Arnold and Kavanagh were both aware of this rule and both were aware of the necessity of placing the cars on the elevator track so that they would clear cars passing on an adjacent parallel track.

There is testimony in the record to the effect that both Arnold and Kavanagh were charged with the duty of seeing that the cars were placed on the elevator track in a position in which they would clear cars moving on the Currie Main Line. But the primary responsibility in this respect rested upon Kavanagh, because, as rear brakeman, the train crew was working under his orders, and because in this instance he was immediately charged with the selection of the point at which the cars were stopped on the elevator track, and he it was who stopped them at a point where sufficient clearance was not afforded. The distance between the switch at which Arnold was working and the end of the car nearest to him on the elevator track was not more than 135 feet. Arnold's view of the cars on the elevator track was not obstructed. There is nothing in the evidence, to show that Arnold could not have seen from his place of work at the switch that the cars on the elevator track would not clear cars moving along the Currie Main Line, or that he made any effort to see whether the cars were properly placed.

Concerning the facts just recited there is no dispute in the evidence. What happened after Arnold mounted the side of the freight car for the purpose of riding down to the passenger coach, however, is in sharp dispute. Kavanagh testified that after Arnold had mounted the car he, Kavanagh, discovered that there was not sufficient clearance between the car on which Arnold was riding and those left on the elevator track to permit Arnold's safe passage; that he immediately warned Arnold of this situation and directed him to get off the car. He testified that at this time the train was moving along the Currie Main Line at normal switching speed, about five or six miles an hour, and that the end of the car on which Arnold was riding was then approximately one-half a car length from the cars on the elevator track. The engineer corroborated Kavanagh concerning the speed of the train.

On the witness stand Arnold denied that he received any warning whatever from Kavanagh or any order to leave the car moving on the Currie Main Line. He estimated the speed of the train at "seven, eight, nine, or ten miles an hour." He said that if he had received warning of the situation confronting him he would have immediately left the car. He testified that after the cars had been left on the elevator track, Kavanagh walked back toward the switch and ordered him to ride the lead car being moved down the Currie Main Line to the passenger coach. These orders were received while Arnold and Kavanagh were on the ground. However, after he had taken his position on the car, Kavanagh shouted instructions to him concerning the connection of the air hose. At this time, according to his testimony, the car on which he was riding had passed Kavanagh, and in order to hear Kavanagh's instructions he was looking toward him in a direction opposite to that in which the train was moving. When he turned to look ahead he discovered the danger confronting him, but he was then too close to the cars on the elevator track to permit him to dismount without running the serious risk of being thrown under the train or in the collision with the cars on the elevator track. He tried to meet this emergency by swinging around the car on which he was riding to the ladder on the front or east end of the car, a position which, if reached, would have permitted him to escape injury. He succeeded in getting his body around to the ladder on the east end of the freight car, but before he could release his right hand from the grabiron on the side of that car it was caught and crushed in the manner stated above.

In direct contradiction to his testimony on the witness stand, Arnold gave a statement to a claim agent of the railway company 10 days after the accident, in which he said that Kavanagh warned him of the danger due to the want of clearance between the car on which he was riding and those on the elevator track. In this statement he said that Kavanagh gave this warning at a time when Arnold was approximately one car length or 40 feet from the nearest car on the elevator track;...