Cooper v. Baltimore & O.R. Co.

• Decision Date: 19 February 1908
• Docket Number: 1,730.
• Citation: 159 F. 82
• Parties: COOPER v. BALTIMORE & O.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

159 F. 82

COOPER v. BALTIMORE & O.R. CO.

No. 1,730.

United States Court of Appeals, Sixth Circuit.

February 19, 1908

G. M Skiles and R. B. Newcomb, for plaintiff in error.

A. E Clevenger and S. H. Tolles, for defendant in error.

Before SEVERENS and RICHARDS, Circuit Judges, and COCHRAN, District judge.

RICHARDS Circuit Judge.

The plaintiff, James H. Cooper, while acting as brakeman on a switching crew of the defendant, the Baltimore & Ohio Railroad Company, was severely injured through getting his foot caught in an unblocked frog. This occurred on October 29, 1906, at about 1 or 2 o'clock at night. Just before the accident occurred Cooper was riding on the footboard in front of the engine. It was about time for the crew of the engine to stop for supper. The engine, after shifting certain cars, stopped on one of the tracks not far from the shanty where the crew was to take supper. After the engine stopped, Cooper, believing and having reasonable ground to believe, that the engine would not be started again without proper notice, stepped from the footboard onto the track for the purpose of crossing the same in order to go to the shanty. He was riding on the right side of the footboard, and it was necessary to step onto the track in order to cross it, because the drawhead of the engine divided the footboard into two parts, so he could not follow the footboard to the left side of the front of the engine. After stepping on the track, and while about to cross it, the engine started slowly forward. At that time, the engine being a leaky one, was in a cloud of steam. The night was dark. The moving engine struck Cooper and knocked him down; he fell on his back between the tracks and the footboard began to move over him. According to the testimony, the engine was proceeding at the rate of two or three miles an hour. As the footboard passed over Cooper, it caught some portion of his clothing, and he, reaching up, caught hold of the footboard, so that, thus holding on himself and being held by some part of his clothing, he was dragged on his back. He was perfectly conscious and was yelling or 'hollering' all the time, trying to attract attention and have the engine stopped. If he had succeeded, and the engine had been stopped while he was thus being dragged along, he would have suffered no serious injury. Then, suddenly, something caught his left foot, he was torn loose at once from the footboard, and the next instant one of the driving wheels of the engine struck him. His left foot was mashed into the frog, and his left leg was crushed off above the knee. In some way his right foot was thrown over and half of it was crushed. Then the engine stopped and he, conscious still, was helped out. An examination of the frog was made that night and again the next morning in daylight. The frog was unblocked. What was left of the left foot was found mashed down with his shoe into the frog.

The court below, after suggesting a discussion of the questions, first, whether the plaintiff was guilty of contributory negligence, second, whether the negligence claimed was the proximate cause of the injury, and, third, whether the fact that the frog was unblocked was negligence, in view of the circumstances of this particular accident, planted itself in its opinion, in which it directed a verdict for the defendant, on the ground that in this case the plaintiff was caught in an unblocked frog while being dragged involuntarily, and that the statute requiring frogs to be blocked was intended solely to protect a person while making a voluntary move. In the course of the opinion, the court says that there was not any dispute as to the proximate cause, although there might be on the question of contributory negligence. The court rests its direction to take the case from the jury on the ground that 'the statute involved here was not contemplated to keep men's feet from being caught when they were being dragged under a moving train or car. ' If the plaintiff was engaged in some sort of voluntary locomotion, whether he was off his balance or not, the court below thinks the statute would protect him, but in this case he was on his back and being dragged, and so he was outside the law.

We are unable to agree with the view of the court below. The law required that 'every railroad corporation operating a railroad in the state, shall, on or before the first day of June, 1899, adjust, fill or block, all angles in frogs, switches, and crossings on their roads in all yards, divisional and terminal stations, where trains are made up, with the best known sheet steel spring guard or wrought iron appliances approved by the Commissioner of Railroads and Telegraphs. ' Section 3365-18, Rev. St. (93 Ohio Laws, p. 342), passed April 25, 1898. This act went into effect on June 1, 1899. It required every railroad company to fill or block all angles in frogs, in all yards or stations where trains are made up. This was a frog in a yard where trains are made up. We think there was testimony tending to show that, as to this frog, the law had not been complied with, and that the catching of the plaintiff's foot in it was the proximate cause of the accident. Union Pac. R.R. v. James, 163 U.S. 487, 16 Sup.Ct. 1109, 41 L.Ed. 236. Moreover, there was sufficient testimony for the consideration of the jury to the effect that Cooper, in stepping off of the footboard in front of the engine under the circumstances he did, was not guilty of contributory negligence.

There remains the broad question as to the construction of the act in the particular stated, upon which the court below really rested its opinion. Is the act to be construed so as to protect even persons who happen to be dragged into an unblocked frog, or limited to these alone who happen to step into it? The Legislature might have intended to protect every person lawfully in the neighborhood, who might voluntarily step into an unblocked frog, but could it have contemplated or intended to cover the case of a man who happened to be struck, knocked down by an engine, and dragged into an unblocked frog? It he was an employe, as the plaintiff was and happened to be knocked down by his own engine, when he was in the discharge of his duty, and without fault on his part, we do not see why the act should not be construed so as to protect him. He certainly had a right as much as any one...