Cincinnati, N.O. & T.P. Ry. Co. v. Mealer

• Decision Date: 06 June 1892
• Citation: 50 F. 725
• Parties: CINCINNATI, N.O. & T.P. RY. CO. v. MEALER.
• Court: U.S. Court of Appeals — Sixth Circuit

50 F. 725

CINCINNATI, N.O. & T.P. RY. CO. v. MEALER.

United States Court of Appeals, Sixth Circuit.

June 6, 1892

Lewis Shepherd and Edward Calston, for plaintiff.

Fred L Mansfield and T. M. Burkett, for defendant.

Before JACKSON, Circuit Judge, and SAGE and SWAN, District Judges.

SAGE District Judge.

Upon the trial of this case the following facts appeared in evidence: On the 28th of October, 1890, the defendant in error, Mealer, was a switchman in the employment of the railway company, plaintiff in error, in its yard at Oakdale Tenn. Shortly after nightfall a through freight train from the north arrived, and was taken charge of by the night yard master. While it was yet moving, he directed Mealer to cut off the caboose and one car. Mealer went between the cars which, it is shown by the evidence and is conceded, was necessary and proper, and, finding that the coupling pin was pushed back under the draft timbers, so that he could not pull it out, held to the pin, running along (in another part of his testimony he said 'walking') and keeping pace with the motion of the train, was expecting the engine to slack ahead a little, so that the pin would be released from under the end sill, and could be lifted out. Just then the forward car 'surged ahead and right back again,' and according to his own testimony, which is the only evidence giving the particulars of the accident, he struck his foot against a piece of coke or coal on the track, and, stumbling, partially fell. That threw his arm down between the deadwoods, there being nothing on the car to hold to. At the same time the rear can ran up against the car forward, and his arm was caught and crushed between the deadwoods, which were placed, as in usual, on each side of the drawheads, so as to protect the cars and prevent the breaking of the drawbars if a drawbar spring was out of order, or not strong enough to keep the cars apart. He testified that to the best of his knowledge what he struck his foot against was a piece of coke, which had fallen off from the cars they had been coupling, and that if there had been a spring in the drawhead it would not have been driven back under the sill and fastened.

Mealer had been in the employement of the railway company some three months, at first as yard clerk, from which service he was transferred, about three weeks before he was hurt, by the general yard master to the night yard master's department, and set to work as a switchman, without having had experience as such, excepting, as he testifies, that he had switched a few nights at Oakdale, when any man was off. Before engaging in the employment of the railway company, he had been a brakeman on another railroad, but for what length of time does not appear. He was 22 years of age when he received the injury. He testified also that he was not instructed by the night yard master how to couple and uncouple cars, but that he knew how to do that work, and that such instructions were not necessary. He further testified that he had gone over the yard daily, from the time of his first entering the service of the company, and knew its condition; that they hauled about one trail of 25 cars of coal or coke there per day; that he had frequently seen lumps of coal and coke fall from the cars, but did not notice any on the track where the accident occurred on that or the previous evening.

The night yard master, called as a witness by Mealer, testified that in switching coke sometime fell off when couplings were made; that that was a usual thing; that he made an examination at the place of the accident immediately after it occurred, and saw pieces of coke on top of the cinders on the track, and that they were 'a couple of inches through, or it might have been larger;' also, that when a person is running between the cars he is likely to be thrown off his balance by striking his foot against a small lump of coal or coke.

The uncontradicted testimony of the road master, and the only testimony on that subject,...