Creswell v. Wilmington And Northern Railroad Company

• Decision Date: 19 June 1899
• Citation: 43 A. 629,18 Del. 210
• Court: Supreme Court of Delaware
• Parties: MARY ELLEN CRESWELL, widow of CHARLES CRESWELL, deceased, plaintiff below, plaintiff in error, v. THE WILMINGTON AND NORTHERN RAILROAD COMPANY, defendant below, defendant in error

43 A. 629

18 Del. 210

MARY ELLEN CRESWELL, widow of CHARLES CRESWELL, deceased, plaintiff below, plaintiff in error, v. THE WILMINGTON AND NORTHERN RAILROAD COMPANY, defendant below, defendant in error

Supreme Court of Delaware

June 19, 1899

Supreme Court, June Term, 1899.

WRIT OF ERROR to the Superior Court for New Castle County (No. 4 June Term, 1898).

The facts, contentions of counsel and authorities cited sufficiently appear in the opinion of the Court.

The judgment is affirmed.

Anthony Higgins and Alfred Constable for plaintiff in error.

Lewis C. Vandegrift and George Gray for defendant in error.

NICHOLSON CH., and SPRUANCE and GRUBB, J. J., sitting.

OPINION

SPRUANCE, J.

This was an action in the Superior Court for New Castle County brought by the plaintiff, Mary Alice Creswell, the widow of George Creswell, against the defendant, the Wilmington and Northern Railroad Company, for the recovery of damages for the death of the said George Creswell, alleged to have been occasioned by the negligence of the defendant on the tenth day of April, 1896.

Under the instruction of the Court, the jury rendered a verdict for the defendant. To this instruction and certain rulings as to the admission of testimony the plaintiff excepted, and took the writ of error upon which the case comes into this Court.

The said George Creswell, while in the service of the defendant and in the act of coupling an engine of the defendant to a freight car of the Baltimore and Ohio Railroad Company, was crushed and killed between the said engine and car.

At the time of the accident he was engaged in shifting cars upon the tracks of the defendant, near Pigeon Point on the Delaware River, there to be transferred to barges.

The engine was known as shifting engine No. 2, and was used only in the barge work in which it was then employed.

The shifting crew consisted of Creswell the conductor, Tyrell the brakeman, and Slifer the engineer.

Slifer was not examined. Tyrell was the only person examined who was present at the time of the accident, and his testimony furnishes all the direct evidence we have upon the subject. His account is substantially as follows: Two empty freight cars which had just been pushed by this engine against two loaded freight cars, were from the impact receding toward the approaching engine, Tyrell being at the brake on the end of the car nearest the engine with one foot on the brake platform (which was about eight feet above the platform to which the draw bar was attached), one leg on top of the car holding the brake wheel, and with his back to the engine. He did not know how Creswell got to the place of the accident, or what he did before the accident. When he first saw Creswell he was standing outside of the rail, leaning in, with his face to the car and his back to the engine, and crushed between the sill of the car and the engine; the drawhead of the engine and the draw bar of the car having slid past each other.

At the time of the collision he estimates that the speed of the engine was from three to four miles an hour, and the speed of the car about a mile and a half an hour.

The plaintiff claims that the death of Creswell was caused by the negligence of the defendant, by the combination and co-operation of the following causes, to wit:

(1) The excessive speed of the engine; (2) the absence of brakes upon the engine; (3) the inequality in the height of the drawhead of the engine and the drawbar of the car; (4) the unsafe drawhead upon the engine, and (5) the insufficient number of men constituting the shifting crew.

The speed of the engine, especially in view of the speed of the approaching car, was no doubt excessive, but this could have been regulated by the engineer according to his own judgment, or upon order or signal from Creswell, the conductor, unless the appliances for this purpose were not sufficient. There is no evidence of any such order or signal from Creswell, or of any unsuccessful attempt by the engineer to stop or slacken the speed of the engine. The engine was not equipped with brakes, but was controlled by a reverse lever, which the defendant claims is not unusual with shifting engines, and better adapted to the work in which this engine was employed than brakes.

In respect to the inequality in the height of the drawhead of the engine and the drawbar of the car, the evidence was that the centre of the drawhead on the engine was in the rear, thirty-three inches above the top of the rail, and in the front, about an inch lower. There was no direct evidence as to the height of the drawbar of this car. There was evidence of some measurements of certain other freight cars of the Baltimore and Ohio Railroad Company, showing the centre of the drawbars of the cars measured to be generally thirty-four, and in one case, thirty-five inches above the rail.

The plaintiff insists that the one pocket drawhead used upon this engine was unsafe, and that a two or three pocket drawhead would not have slid past the drawbar of the car and allowed the engine and car to come together as they did.

The defendant contends that the one pocket drawhead used was better adapted to the particular work in which this engine was engaged, and for this purpose refers to the testimony that the work of shifting and coupling of cars at the time of the accident was preparatory to loading cars upon a barge, which work was also done by the same engine; that in loading the cars they were pushed by the engine from the wharf to the barge over a bridge or slip, which rose and fell with the barge, it being attached to the wharf by hinges and to the barge by pins and chains; that similar slips were used at other points on the river to which the cars were transported; that in this work it was necessary that the drawhead of the engine should be strong and allow considerable play, and that in these respects and for this work the one pocket drawhead used was superior to the two or three pocket drawhead.

It appears from the testimony that five is the usual number of a shifting crew in yard work where there are passing trains, many cars to be handled and speed often necessary, but that in the barge work, in which Creswell was engaged, as there were no passing trains, comparatively few cars to be handled, and usually no need of great speed, a crew of three had long been used and found sufficient.

There is no evidence that the engineer or brakeman were incompetent, or that they had not been selected by the defendant with due care.

If Creswell omitted to give the proper order or signal to the engineer when he saw the engine approaching at a dangerous speed, or if he attempted the coupling when he saw the engine and car approaching each other at an unsafe speed, or if he attempted the coupling in an unskillful manner, he was guilty of negligence, which would defeat recovery; but in the absence of any direct evidence as to what he did or omitted immediately before the accident, the inference of his negligence from the position in which he was found after the collision, was not alone sufficient to justify the withdrawal of the case from the consideration of the jury.

In Wheatley vs. P., W. & B. R. R. Co., 15 Del. 305, 1 Marvel 305, 30 A. 660, it was said, that if the injury be caused by the negligence of a fellow servant combined with negligence on the part of the master, the latter is liable. This must be limited to cases where there has been negligence on the part of the master in the selection of the negligent fellow servant or some other negligence of the master for which the law would hold him responsible if it had been the sole cause of the injury. In other words, while contributory negligence of the servant injured will defeat his recovery against the negligent master, contributory negligence of a fellow servant will not defeat such recovery.

Grand Trunk Railway vs. Cummings, 106 U.S. 700, 27 L.Ed. 266, 1 S.Ct. 493.

The material question is, was there any evidence of negligence on the part of the defendant which would have warranted the jury in finding a verdict for the plaintiff. The burden of proving such negligence was on the plaintiff. It was not incumbent on the defendant to show the cause of the accident or that it was not caused by the defendant's negligence.

The ground upon which a servant recovers against a master for injuries sustained in his service is, that such injuries were caused by the violation or neglect of some duty which the master owed to the servant. If there was no such duty there can be no such liability. It is not the duty of the master to furnish appliances of the best and most improved kind.

Thorn vs. New York City Ice Co., 46 Hun 497; Spencer vs. N. Y. Central Ry. Co., 67 Hun 196, 22 N.Y.S. 100.

In the recent case of Texas and Pacific Railway Co. vs Archibald, 170 U.S. 665 at 671, 42 L.Ed. 1188, 18 S.Ct. 777 (1898), the Supreme Court said, that it is the duty of the employer "to furnish appliances free from defects discoverable by the exercise of ordinary care." * * * * "Where an employee receives for use a defective appliance, and with knowledge of the defect continues to use it without notice to the employer he cannot recover for an injury resulting from the defective appliance thus voluntarily and negligently used." * * * * "He has a right to assume that the employer will use reasonable care to make the appliances safe and to deal with those furnished relying on this fact, subject of course to the exception by which when an appliance is furnished to an employee in which there exists a defect known to him or plainly observable by him, he cannot recover for an injury caused by such defective appliance, if with the knowledge above stated, he negligently continues to use...