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

• Decision Date: 03 January 1912
• Docket Number: 2,154.
• Parties: CINCINNATI, N.O. & T.P. RY. CO. v. JONES.
• Court: U.S. Court of Appeals — Sixth Circuit

192 F. 769

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

No. 2,154.

United States Court of Appeals, Sixth Circuit.

January 3, 1912

In an action for death of a railroad brakeman by being struck and killed by a low portion of the roof in the middle of a tunnel, defendant held chargeable with actionable negligence.

This action was brought by Jones, as administrator, to recover damages for the alleged negligent killing of Winters while in the employ of the railway company as brakeman. The negligence charged in the first count of the declaration is in substance that the railway company maintained certain tunnels on its road, which were so low and in such unsafe and dangerous condition that deceased, on the night of October 8, 1907 while riding on one of the cars of a freight train through one of these tunnels was, without fault on his part and through this alleged negligence of defendant, struck and killed. The case was submitted to a jury on this count, under pleas of not guilty and contributory negligence, and a verdict for $5,500 was rendered in favor of the administrator.

The freight train in question was running southwardly from Pine Knot, Ky., to Oakdale, Tenn. The portion of the road in which the tunnels mentioned were maintained is located in a mountainous district of Morgan county of the latter state and the tunnels are numbered 22, 23, and 24 counting from north to south. The tunnel in which the deceased was struck is No. 23, and the distances between its north and south ends respectively and the other tunnels are each about one-half mile. No person saw the deceased at the time of the injury. He was last seen with his lantern on top of the train at a point several hundred feet back of the locomotive, as the train was leaving Lancing. It was proper for him to be on or to pass along the top of the train, and it was necessary for him to be there when communicating signals to the engineer. The train comprised about 50 cars and was running at a rate variously estimated from 25 to 40 miles an hour. Winters' body was found the next day about 200 feet north of tunnel 24 on the east side of the track and about two feet from the ends of the ties, the track at that place running north and south. There was a large gash over his right eye and extending along the side of the head. Signs of blood were found on a piece of wood lying in the middle and on the east side of tunnel 23, and also from the south end of that tunnel along the east side of the track to a point near the mouth of tunnel 24.

Tunnel No. 23 is 800 feet long. Defendant's locomotive engineer testified that the track within the tunnel 'has two curves or what is called a reverse curve, and the second curve commenced about middle ways. I judge of the curve in this tunnel by riding my engine through it. ' The tunnel was cut through solid sandstone, and it has the original rock sides and roof. The surface of the roof is irregular and generally higher along the center line of the track, but with less slope on the west side than on the east side. At the time of Winters' injury a portion of the roof near the middle of the length of the tunnel and extending over and across the track was 15 inches lower than it was at the ends of the tunnel and lower than were any of the other portions of the roof.

There was not room between the sides of the tunnel and the sides of an ordinary box car for a man to climb up or down the side of the car; nor was there room for him to sit on either of the edges of the car roof. There was not sufficient clearance between the running board of a box car and the tunnel roof to stand. There is conflict in the testimony as to the distance between the lowest portion of the protruding ridge of the tunnel roof, before described, and the running board of a box car of average height, and also between this portion of the tunnel roof and the top of the head of a man of ordinary height when sitting on the running board; but there is probably a clearance of not more than 10 inches between the bottom of this low part of the roof and the top of the head of a man of the height of Winters while sitting upright on the running board. The testimony does not show the height of the car, or even the kind of car, on which Winters was riding at the time of the injury, but there is testimony showing that box cars vary in height.

Testimony was introduced without objection tending to show that before Winters was employed he signed a paper (which, with the station containing it, had been destroyed by fire) in which he stated that he knew the tunnels on the line were 'too low to clear a man standing on a box car or sitting on the edge thereof,' and also that there is not room in the tunnels safely 'to climb up or down the side of a box car, while trains are in motion'; and further tending to show that before he entered upon his duties he was required 'to learn the road' and have 'the signatures of several conductors showing he had made a proper number of trips over the road'; and thereupon a statement was made out showing that he had passed a satisfactory examination. Winters was 22 years of age and had been in the employ of the company about eight days prior to his death.

George Hoadly and T. A. Wright (Edward Colston, of counsel), for plaintiff in error.

John B Daniel and John M. Davis, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

At the close of the evidence offered by the administrator, and again at the close of all the evidence, the railway company moved for a directed verdict. The motions were overruled and exceptions reserved. The company then presented requests for special instructions to be given to the jury; these in large part were covered by the general charge, and the rest were either given or so far explained that they will not, in the view we take of the case, require specific attention.

The main reliance of the railway company is that under the testimony the injury is traceable as well to causes for which the company is not responsible as to any cause for which it is responsible; and, consequently, that the jury was permitted to conjecture and guess concerning the rights of the parties. If this could be sustained the judgment would, under the settled authorities, have to be reversed. But when the general charge and all the pertinent facts adduced are considered, we think the claim relied on is not sustainable.

The general charge was full and also exceptionally clear in its analysis and submission of the issues of fact. Some of the causes pointed out for which the company would not be responsible must under the charge be eliminated; and a number of other ways mentioned by which injuries might have happened are inconsistent with the facts proved concerning the injury that did happen. Conceding the claim of the railway company that in view of the contents of the paper, which Winters is said to have signed before commencing his service as brakeman, he knew that the tunnel was too low to clear a man when either standing on a box car or sitting on the edge of its roof, still the charge was clearly in favor of the railway company on both of these points; and it cannot be assumed here that the jury violated the positive instructions of the court in these respects. This is true also of Winters' knowledge and the charge as to lack of room in the tunnels safely to climb up or down either side of a box car, while going through the tunnel. And if Winters was at the time of the injury attempting to climb up or down either end of a box car, his body could not have been dragged the distance indicated by the long line of bloodstains found on the east side of the track, without mutilation that would necessarily have revealed the fact; and nothing to indicate anything of that kind was found on the body.

We are not unmindful of the insistence of learned counsel for the company that Winters was struck in the tunnel while sitting on the east edge of the roof of a box car; and that this is consistent with the line of bloodstains found, and also with the fact that the body was not jostled off the roof until the car reached the place where the body was discovered. This not only assumes that the jury found in the face of the charge of the court in this behalf, but also that the conductor of the train was in error when he said:

'A man cannot hold his position when the train is running around curves sitting on the side or edge of the car either in the tunnel or out of it.'

It will be borne in mind that there is a reverse curve in this tunnel, and it may be added that the conductor thought that the train was 'running 30 to 40 miles an hour. ' It cannot escape notice, however, that the circumstances considered by counsel pressing this claim led him to believe that Winters at the time of the injury, was in fact on the roof of a box car.

The inquiry becomes pertinent, then, as to what part of the roof he in fact was occupying when he received the injury. Every part of a box car on which he could in our judgment have been, has been eliminated except the running board. He was not standing on the running board; and this brings us to the point on which the decision must turn. Winters was not told or warned of the fact that any portion of the roof of any tunnel on the road, much less that any portion of the roof of tunnel No. 23, was lower than the roof was at the tunnel entrances; and yet, at the middle of tunnel No. 23 the portion of the roof over the track was 15 inches lower than it was at the north entrance. If Winters had been struck at the north entrance of the tunnel, it is hardly conceivable that the first appearance of bloodstains would have been found on the stick of...