Davis v. Hand
| Decision Date | 21 May 1923 |
| Docket Number | 6084. |
| Citation | 290 F. 73 |
| Parties | DAVIS, Agent, v. HAND. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Yale C Holland, of Omaha, Neb. (E. J. White, of St. Louis, Mo., and J. A. C. Kennedy, of Omaha, Neb., on the brief), for plaintiff in error.
Herman Aye and R. M. Switzler, both of Omaha, Neb., for defendant in error.
Before SANBORN and KENYON, Circuit Judges, and SYMES, District Judge.
The husband of the plaintiff was killed February 10, 1920, while in the employ of the United States railroad Administration at Omaha, Neb., as the result of being crushed between a coal car and the side of a coal bin adjacent to the track on which the car was being moved. The railroad in question was the Missouri Pacific, a Delaware corporation under government operation. We will refer to the parties as they stood below.
At the time of the accident and for some time prior thereto the defendant maintained in its yards a coal bin consisting of an old abandoned coal car about 40 feet long, used for storing coal for use in the roundhouse immediately adjoining on the west. A spur track ran along the east side of the bin and ended just beyond its north end. This track was straight except the north end was a little further from the coal bin than the south end. From the south end of the bin, south to a turntable, a distance of 60 feet, there was a very slight curve in the track. The side of the bin adjoining the track bulged somewhat, and at its south end was very close to the track, and would not begin to clear a man on the side of a passing car. This track was used only for the purpose of holding an occasional load of coal while being unloaded into the bin. There was clear space to the east of this track.
Fay D Hand, the deceased, and husband of plaintiff, was the fireman of what is called 'a clamshell,' an old converted steam shovel used for loading gravel, coal, clearing cinder beds, coaling engines, and setting and taking out cars from this spur track. It operated under its own power, and its total length, including a tender, was about 60 or 70 feet. The crew consisted of an engineer and fireman. It was the duty of the deceased, as fireman, among other things, to assist in making couplings between the clamshell and cars that it moved. The engineer's place was on the right-hand side and to the front of the clamshell, where the operating machinery was located. All signals given by any one making a coupling had to be given on the right-hand side, in order to attract the attention of the engineer.
At the time of the accident an empty coal car was standing on this spur track east of the coal bin, and projected a very little south of the south end of the bin. The clamshell crew were ordered to take out this empty car and set in a loaded one. In accordance therewith the engineer, Broom, and Hand took the clamshell over onto the spur track and backing up to the empty car sought to couple up by impact, but the couplings failed to work. When this first attempt was made the deceased was standing at the south end of the coal bin and west of the track. As a result of the first impact the empty car was shoved northward and several feet past the south end of the bin. Hand then gave the engineer a signal to move forward clear of the coal bin, evidently in order that he could go between the bin, the clamshell, and the empty car to see why the coupling had not made. It is undisputed that he could not go between the cars until the clamshell was far enough south to be clear of the bin. He did so, and from a position at the end of the car gave a signal to the engineer to again back up. This was done, and the second attempt to couple by impact failed, and the coal car again shoved a few feet further to the north, leaving an open space between the end of the tender of the clamshell and the empty car.
Hand again signaled the engineer to move north Hand being between the empty car and the tender. On this, the third impact, the coupling made, evidently as the result of Hand having lined up or adjusted the couplings. He then gave the engineer a signal to go ahead. The engineer moved a few feet only, in order to ascertain whether or not the coupling had in fact been made. The engineer testified that he then looked out of his window and that Hand again signaled him to go ahead, his testimony being:
He further stated that to the best of his recollection after the coupling was made, the deceased was standing on the sill at the south end of the coal car, but was not certain about it; also that, when the last signal was given, he could see that part of the body of the deceased from the shoulder up. A witness for the defendant testified that when the last signal was given the deceased was standing on the ground between the cars on the west side of the track, and starting to climb up on the car. It also appears from the testimony, in regard to which there is very little dispute, that Hand was in full charge of the operation, and that the clamshell moved only on his order. On the opposite side of the track from the coal bin there was plenty of room.
On these facts the plaintiff claims that it is established as a matter of law that the federal Safety Appliance Act (Comp. St. Secs. 8605-8623) was violated, and that such violation was the proximate cause of the accident and death of the deceased. It may be conceded that the reason the coupling was not made by impact on the first two attempts was due to the failure of the couplings to work, either because of a misalignment of the drawbars or some defect therein, and that, after the first failure to couple, the deceased went between the cars for the purpose of lining them up, with the result that the coupling finally made, as stated, on the third attempt. Admittedly there was no other way that the couplings could have been lined up, as no appliance has yet been devised for accomplishing this in any other manner. In this class of cases the decision of this question only becomes material, if the alleged defects in the couplings, and the consequent violation of the act, was the proximate cause of the resulting accident. It therefore becomes necessary to consider this latter question first.
An important development of statutory law in recent years has been that class of statutes, of which the Safety Appliance Act is an example, that imposes upon common carriers, and other public or semi-public corporations serving the public the duty of observing certain requirements and using certain safety devices and equipment designed to lessen accidents, under the pain and penalty of being absolutely liable...
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