Choctaw, O. & G.R. Co. v. Tennessee

• Decision Date: 24 April 1902
• Docket Number: 1,624.
• Citation: 116 F. 23
• Parties: CHOCTAW, O. & G.R. CO. v. TENNESSEE.
• Court: U.S. Court of Appeals — Eighth Circuit

116 F. 23

CHOCTAW, O. & G.R. CO. v. TENNESSEE.

No. 1,624.

United States Court of Appeals, Eighth Circuit.

April 24, 1902

Sanborn Circuit Judge, dissenting.

Plaintiff who was head brakeman on a freight train, stepped upon the stirrup or step on the front of the engine pilot as the train was moving slowly along a switch track in the yards at night and by reason of the giving way of the step, his foot went between the ties, where it was caught and crushed. In an action to recover for the injury there was evidence tending to show that the step was out of repair, and had been for some days, but that such fact was unknown to plaintiff; that it was customary to fill the spaces between ties in a switch yard, and that plaintiff had been in this yard, which was new, but once or twice before, and then at night; that it was customary and proper for the head brakeman to ride on the pilot when the train was going upon the switch tracks to attend to the opening and closing of switches, and that the steps were placed there for that purpose; that there was no rule of the company, known to plaintiff, against stepping on such pilots while the train was in motion, unless it was moving at a high rate of speed. There was also evidence on behalf of defendant that it was not customary to have the spaces between ties filled in new yards, like the one in question. Held, that the court did not err in refusing to decide the questions of negligence or contributory negligence as matter of law, and properly submitted them to the jury.

E. B Pierce and Charles B. Stuart (J. W. McLoud, on the brief) for plaintiff in error.

J. W. House (J. E. Williams and J. W. Blackwood, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This is an action for personal injuries which was brought by Thomas Tennessee, the defendant in error, a brakeman in the employ of the Choctaw, Oklahoma & Gulf Railroad Company, against that company. The injury complained of was sustained on February 6, 1900, at Argenta, Ark., near Litle Rock, at which place the company had an extensive yard for parking and making up freight trains. The plaintiff below was head brakeman on a freight train of the defendant company which arrived at this yard about 10 o'clock p.m. on the night of the accident; having come from Memphis, Tenn. As it headed into the yard, the plaintiff descended from the engine, and threw, in succession, two switches to let the train in onto the lead track, and to the particular side track where it was to stand for the night. After throwing the last switch, being in front of the engine, he attempted to board the pilot of the engine for the purpose of riding down into the lower part of the yard, to see that the switches were lined up, and to be in a convenient position to open or close them readily if they were not properly lined up. In his attempt to board the pilot, he stepped on an iron step or stirrup which was bolted to the bottom of the pilot or cowcatcher, about six or eight inches from the point thereof, when, as he claimed, the stirrup gave way, and his foot went down between the ties, which at that point were not filled in; the result being that his leg was run over and crushed, and had to be amputated. He charged as negligence on the part of the company the defective condition of this stirrup, and the fact that the track was not filled in between the ties as it ought to have been, by reason of which defect his foot was caught or wedged in under one of the ties so that he could not extricate it. The case was submitted to the jury, and there were a verdict and judgment below in favor of the plaintiff, to reverse which the defendant company sued out a writ of error.

One of the errors assigned is that the trial court refused to withdraw the case from the jury, as it was requested to do; and, as this contention presents the principal question in the case, we are compelled to state the substance of the testimony which was adduced at the trial. The plaintiff's witnesses, including the plaintiff, who was one of the principal witnesses, testified to the following effect: That the proper position for a head brakeman on a freight train, when it is running into yards like the one at Argenta, is on the front of the engine, to enable him to line up the switches promptly, as they are encountered, and prevent derailments; that the pilots of freight engines are provided with footplates or stirrups, on which it is customary for the head brakeman to stand for that purpose; that the engine which he attempted to board on the occasion of the accident was provided with such a footplate; that he had never received instructions not to ride on the front end of the engine, in the manner described, but, on the contrary, had often been commanded by conductors to so ride; that the only rule on the subject which had been prescribed by the defendant company that he ever saw was a rule warning its employes not to jump on or off an engine when it was running 'at a high rate of speed'; that on the occasion of the accident the engine was moving very slowly,-- not more than four miles an hour; and that, when the plaintiff attempted to board the engine and was hurt, he was discharging his duties in the proper and customary manner, as all other employes under like circumstances were in the habit of discharging them. With reference to the condition of the stirrup on the pilot, the evidence elicited from the plaintiff was that 'it gave way or went down' when he stepped on it, and that his foot was wedged in under one of the ties (the space between the ties not being filled in) so that he could not extricate it in time to prevent being run over; while another witness testified that this stirrup on the pilot was in a defective condition, being so loose three or four days prior to the accident; that he had at that time warned a fellow brakeman not to step on it, because of the condition it was then in. The plaintiff, testifying in his own favor, denied having any knowledge that the stirrup was out of repair and defective before the accident occurred. The testimony relating to the condition of the yard tracks and the plaintiff's knowledge of their condition was to the following effect: The yard had been constructed during the months of October, November, and December, 1899, and was of large dimensions; consisting of 10 or 12 long tracks, laid side by side, which branched off from a lead track surrounding the yard. The defendant company began to use this yard to park and make up its trains late in the month of December, 1899. On account of physical disability, the plaintiff laid off and did not work for the company during the month of January, 1900, and, as he testified, had not been in this yard, save on two or three occasions, prior to the accident. On these occasions he was either in the yard about daylight in the morning to help take out his train after it was made up, or when it headed into the yard about 9 or 10 p.m., as on the evening of the accident, on the return of the train from Memphis. He had never been on track No. 3, where he was hurt, until the evening of the accident; and he denied having any information concerning the condition of the tracks generally, save such as was acquired by a casual glance on the two or three occasions aforesaid when he was in the yard, or when he was passing in proximity to it on the main track, and was at the time in the discharge of his ordinary duties. The spaces between the ties of track No. 3 and in the yard generally had not been filled in with earth, although it is customary to fill in between the ties and make the surface of the ground as level as possible in depot yards where much switching is to be done. The plaintiff testified that, if the track had been filled in, his foot would not have been caught, and that he could have extricated himself when the stirrup on the pilot gave way. On the other hand, the defendant produced evidence which tended to show that while it is customary to surface up the tracks in depot yards, by filling in between the ties, yet, as this was a new yard, it was in the condition in which newly constructed yards are usually left for some time, to permit the water to drain out.

Such being the character of the evidence that was adduced on the trial, we think that the case could not have been lawfully withdrawn from the jury without usurping its functions. The testimony manifestly tended to show that the stirrup in question had been in a defective condition for some days prior to the accident, and that the defect in the stirrup was a proximate cause of the injury. Moreover, in view of its location and the use that was made of it by brakemen, the jury were doubtless warranted in finding that, in the exercise of ordinary care, the defect should have been discovered by the defendant and repaired prior to the accident. We also think that because of the location of the track where the accident occurred, and the use that was made of it for switching purposes and to assemble trains, it was the province of the jury to decide whether it was in a fit condition for the uses to which it was devoted, and whether the defendant company was chargeable with any want of ordinary care or diligence in that respect. These were questions, as we think, respecting which reasonable men might entertain different opinions; and, such being the fact, it was the province of the jury to determine them.

Counsel urge, however, that the plaintiff ought not to have made the attempt to board the engine while it was in motion, and that because he did so, the trial court should have declared, as a matter of law, that he was guilty of contributory negligence and could not recover. But this contention...