Cincinnati, H. & D.R. Co. v. Van Horne

• Decision Date: 02 July 1895
• Docket Number: 306
• Citation: 69 F. 139
• Parties: CINCINNATI, H. & D.R. CO. v. VAN HORNE.
• Court: U.S. Court of Appeals — Sixth Circuit

69 F. 139

CINCINNATI, H. & D.R. CO. v. VAN HORNE.

No. 306

United States Court of Appeals, Sixth Circuit.

July 2, 1895

Wm. K Maxwell (Ramsey, Maxwell & Ramsey, of counsel), for plaintiff in error.

Charles M. Cist and Edgar W. Cist, for defendant in error.

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

TAFT Circuit Judge.

This is a proceeding in error to review the judgment of the circuit court for the Southern district of Ohio in favor of Stephen A. Van Horne for $1,000. The plaintiff was a switchman in the employ of the defendant in its yards at Ivorydale, Ohio, in September, 1890. In the discharge of his duties his foot was caught in a guard rail on the track of the defendant company in such a way that he was unable to extricate himself before he was struck by a locomotive. His foot was torn from the shoe which he had on, and luckily was not caught under the wheels, but a bone in his foot was broken, and he suffered other injuries confining him to the hospital for some time.

A statute of Ohio passed March 23, 1888 (85 Ohio Laws, 105) provides that:

'Every railroad corporation operating a railroad, or part of a railroad, in this state, shall, before the first day of October, in the year 1888, adjust, fill or block the frogs switches and guard-rails on its tracks, with the exception of guard-rails on bridges, so as to prevent the feet of its employes from being caught therein. The work shall be done to the satisfaction of the railroad commissioner.'

The question of fact at issue in the case was-- First, whether the guard rail in question had been blocked at all; and second, whether, if blocked to the extent which the safety of trains would permit, the accident in this case could have been avoided. The defendant introduced evidence to show that a block which would have prevented the injury would have been inconsistent with the safe running of trains, and contended that the statute did not require such an impossible precaution. To meet this evidence and contention, the plaintiff introduced evidence to show that there was a block, sufficient to have prevented this accident, put into the guard rail after the accident, which did not interfere with the running of trains. The only ground upon which a reversal is asked is the action of the court in allowing evidence to be introduced as to the presence of a block immediately after the accident between the guard rail and the switch. Counsel for plaintiff, in introducing this evidence, disclaimed any intention of relying upon it to show that there was negligence in not having put the block between the rails before, but insisted on its relevancy to show the possibility of blocking the...