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

• Decision Date: 12 June 1918
• Docket Number: 3121.
• Parties: CINCINNATI, N.O. & T.P.R. CO. v. McGUFFEY.
• Court: U.S. Court of Appeals — Sixth Circuit

252 F. 25

CINCINNATI, N.O. & T.P.R. CO. v. McGUFFEY.

No. 3121.

United States Court of Appeals, Sixth Circuit.

June 12, 1918

Wright Jones & Saxton, of Knoxville, Tenn., and George Hoadly, of Cincinnati, Ohio (Edward Colston, of Cincinnati, Ohio, of counsel), for plaintiff in error.

W. Y Boswell, of Oakdale, Tenn., and Turner, Kennerly & Cate, of Knoxville, Tenn., for defendant in error.

Before WARRINGTON and KNAPPEN, Circuit Judges, and COCHRAN, District judge.

KNAPPEN Circuit Judge.

The parties will be designated here as in the trial court. McGuffey, the deceased, was killed in the course of his employment as member of a switching crew in the railway company's yards at Oakdale, Tenn. His administratrix recovered judgment under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1916 Secs. 8657-8665)), which concededly applies.

East of and parallel with the repair or 'rip' track in the northern section of the yards was a series of other tracks the westerly of which was No. 6. From the frog of the switch connecting with track No. 6 the 'rip' track descends to the northerly at a grade of about 1 per cent. for about 415 feet, when it reaches a level which is maintained for a further distance of at least 550 feet. The deceased, at between 4:30 and 5 o'clock in the morning of October 28th, when it was 'just getting daylight' (there being a light fog), was riding a cut of two bad-order cars kicked from track No. 6 onto and down the repair tracks; the kicked cars collided with a loaded scrap-iron car standing on the westerly of the repair tracks, about 50 feet before the level was reached, and thus about 400 feet from the point of the switch where the shunting movement began.

Against a general motion by defendant for a directed verdict, and in denial of the requests later referred to, the trial court submitted to the jury three asserted grounds of defendant's negligence: (1) In respect of placing and leaving the loaded scrap-iron car on the repair track at the time and in the location in question; (2) in respect of the alleged speed at which the switched cars were kicked onto and down the repair track; and (3) in that the foreman of the switching crew, after learning of the position of the scrap-iron car, and that the switched cars were going rapidly down the repair track, failed to effectually warn deceased of the impending collision and to give him opportunity to escape.

That deceased was on one of the switched cars when they collided with the scrap-iron car, and was killed by that collision, must, for the purposes of this review, be taken as established. It is necessarily so found by the verdict, in view of the court's charge; and, although there was substantial evidence to the contrary, the verdict in that respect is sustained by substantial testimony. As the record is made up, the judgment should be affirmed, provided defendant's requests to exclude from consideration both the first and third submitted grounds of negligence were properly denied.

The testimony relating to each of these questions was in sharp conflict; upon either it would support a verdict in defendant's favor. But it scarcely need be said that on the motion for an instructed verdict, wholly or in part, the trial court was bound to take the view of the evidence, and of the inferences deducible therefrom, most favorable to the plaintiff, and that we cannot reverse merely because we may entertain a different view or draw different inferences than accepted by the jury.

1. The presence of the scrap-iron car on the repair track. Construing the testimony most favorably to plaintiff, it was open to the jury to conclude that it was defendant's rule and custom in putting cars on that track to place them, in the interest at least of easy handling, at the far end of it, and thus past the grade therein and well down in the level part, which, as already said, extended about 550 feet beyond the foot of the grade; that independently of such rule or custom, and in view of the fact that the repair track was to be used by switching crews in the nighttime, when the track was not well lighted, in either pushing or kicking cars thereon, due care for the switchmen's protection required the spotting of the cars well beyond the foot of the grade; that the scrap-iron car in question was not in bad order, but had been brought onto the repair track on the day before for purposes of loading, and at 4 or 5 o'clock on the afternoon of that day was stationed near a scrap-bin, about 350 feet north of the place where it was at the time of the collision (how or why moved to its later position, about 50 feet up the grade, does not appear); and that there was enough unoccupied space north of this later position to permit keeping it beyond danger of the collision in question.

It appeared, however, that the repair track was frequently full of cars at night, that just before the movement in question Hutson, the switching foreman, had followed down the main track the first two cars of a cut of seven then being distributed, and that thereupon...