Cincinnati, N.O. & T. Ry. Co. v. Cox

• Decision Date: 06 February 1906
• Docket Number: 1461.
• Citation: 143 F. 110
• Parties: CINCINNATI, N.O. & T. RY. CO. v. COX.
• Court: U.S. Court of Appeals — Sixth Circuit

143 F. 110

CINCINNATI, N.O. & T. RY. CO. v. COX.

No. 1461.

United States Court of Appeals, Sixth Circuit.

February 6, 1906

W. L Frierson and Edward Colston, for plaintiff in error.

D. F Snodgrass and T. C. Latimore, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was an action for personal injuries sustained by the plaintiff below, while in the employ of the defendant railway company as a fireman. Through the breaking of the shaker bar the plaintiff was thrown from a moving engine, receiving severe injuries. It was charged that the shaker bar was defective, the handle bar not being securely fastened to the upright piece; that a proper inspection would have disclosed this, but there was no such inspection. The case went to the jury, and there was a verdict and judgment for the plaintiff. A reversal is asked on several grounds: First, because the court refused to direct a verdict for the defendant; second because the court, after the evidence had closed and the arguments begun, refused to permit the defendant to introduce a certain witness; and, third, because the court should have granted a new trial for lack of the evidence of this witness.

1. The shaker bar is used to shake and loosen the ashes, cinders, and clinkers in the grate. It consists of an upright piece and a handle bar. The upright piece has a grate connection below and comes up into the cab alongside the boiler. At the upper end it is connected with a handle bar, also called the shaker bar; the latter having jaws which fit on either side of the end of the upright piece, and are fastened to it by a bolt held in place by a nut. When not in use, the handle or shaker bar drops down against the upright piece. When in use it is raised to a horizontal position and worked laterally. The accident occurred about 6:15 o'clock on the evening of October 23, 1903. The plaintiff and his engineer had been on the engine only that day, having been ordered to change to it at Oakdale about 5:30 o'clock that morning. Before they left Oakdale at 6 o'clock, the engineer inspected the engine; but the testimony conflicts as to whether he did or did not inspect the shaker bar. He says that the running parts of the engine were all the engineer was supposed to inspect thoroughly, but that he did look at the shaker bar, and saw the nut which holds in place the bolt. The plaintiff, on the other hand, says that he was in the cab during the inspection; that the engineer put in his time looking over the running parts and did not inspect the shaker bar, which was partially covered by the drip pan, or get into the cab, until they were about to leave. Both the engineer and the plaintiff used the shaker bar during the day. The plaintiff noticed it was loose, but not more so than other shaker bars. There was testimony that neither one nor two men could break the handle bar loose, if it was properly fastened to the upright piece. This handle bar, when found after the accident, had one of its jaws bent or sprung about a quarter of an inch. The plaintiff, after being hurt, requested his fellow employes to preserve the shaker bar and broken pieces-- the bolt and nut; but the bolt and nut were either never found or not produced.

The plaintiff and his engineer by orders 'swapped' engines at Oakdale the morning of October 23d, with Engineer Niles and his fireman, Cross. The latter had had engine 663 on which the accident occurred, for a week or more preceding. This case was tried twice. On the first trial Niles and Cross were both still in the employ of the railway company, and neither was produced as a witness. On the last trial, Cross was out of the employ of the company and was produced as a witness by the plaintiff. He testified...