Dahlen v. Hines

• Citation: 275 F. 817
• Decision Date: 25 June 1921
• Docket Number: 2888.
• Parties: DAHLEN v. HINES, Director General of Railroads.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

275 F. 817

DAHLEN v. HINES, Director General of Railroads.

No. 2888.

United States Court of Appeals, Seventh Circuit.

June 25, 1921

Henry Mahoney and Irving A. Fish, both of Milwaukee, Wis., for plaintiff in error.

C. H Van Alstine and Henry J. Killilea, both of Milwaukee, Wis for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

The determination of the questions raised by this writ of error necessitates an examination of the facts to ascertain whether there was any evidence that required defendant's liability be submitted to a jury. The testimony, viewed most favorably from plaintiff's standpoint, supports this statement:

Plaintiff, an air inspector in the Milwaukee terminal of defendant company, on May 29, 1919, while inspecting the air hose connections on a train of cars which had been examined and repaired, and occupied the track used only by cars about to 'go out,' and which were ready for service, found the hose uncoupled. He paused to look up and down the train, and, seeing no moving cars at either end thereof, stepped between the two cars, picked up the ends of the hose, and connected them. They, however, fell apart, whereupon he examined the gaskets, and, finding them satisfactory, he stooped down again to connect them, when a sudden movement of the cars, following a crash, knocked him over. He seized the hose and was dragged some distance, but his feet avoided the wheels. He pulled himself up, when a second crash resulted in a second fall, and this time one foot was thrown over the rail, and the loss of a leg resulted.

The cause of the unexpected crash was another train of 16 loaded cars coming down the track at a rapid speed in charge of one brakeman, who was unable to control them, due to the momentum and the grade. There is testimony to the effect that these cars were moving at the rate of 15 miles per hour when they crashed into the standing cars, which plaintiff was inspecting, whereas 2 miles per hour was the usual and ordinary speed at which such cars were moved.

On July 1, 1918, defendant adopted what was called the Standard Code of Train Rules, among them being rule 26, which reads:

'A blue signal, displayed at one or both ends of an engine, car, or train, indicates that workmen are under or about it; when thus protected, it must not be coupled to or moved. Workmen will display the blue signals, and the same workmen are alone authorized to remove them. Other cars must not be placed on the same track, so as to intercept the view of the blue signals, without first notifying the workmen.'

Another rule, announced May 15, 1918, reads:

'This rule will apply to all repair tracks, and car foremen are hereby instructed to keep a blue flag or blue lantern on the main track end of the first car on repair track at all times, except to permit switching.'

Rule 26 was not followed by the employees (in fact, there is evidence that it was totally ignored in these yards) until January 22 1919, when defendant secured from all...