Delaware & H. Co. v. Dix

• Decision Date: 23 June 1911
• Docket Number: 13.
• Citation: 188 F. 901
• Parties: DELAWARE & H. CO. v. DIX.
• Court: U.S. Court of Appeals — Third Circuit

188 F. 901

DELAWARE & H. CO. v. DIX.

No. 13.

United States Court of Appeals, Third Circuit.

June 23, 1911

Welles & Torrey, for plaintiff in error.

M. S Kaufman and R. L. Levy, for defendant in error.

Before GRAY and BUFFINGTON, Circuit Judges, and YOUNG, District Judge.

YOUNG District Judge.

Anna A Dix, defendant in error, plaintiff below, brought this action against the Delaware & Hudson Company, plaintiff in error defendant below, in her own behalf and that of her children to recover damages for an injury caused by the alleged negligence of the defendant and resulting in the death of Walter Dix, her husband. The evidence in the case shows that Walter Dix, on January 4, 1908, at 10:40 p.m., was employed by the Erie Railroad as a conductor, and was riding in the caboose attached to a freight train of the Erie Company.

The plaintiff offered evidence tending to show that at the time of the accident Walter Dix was kneeling on a bench in the caboose, with his arms resting on the sill of a small window in the side of the caboose and facing it, and that while in this position, occupied by him in the performance of his duty, a freight train of the defendant company was passing in the opposite direction to that of the Erie train on an adjacent track; that one of the cars of the defendant's train was a refrigerator car in which was a door; that this door had upon it an appliance consisting of a movable iron lever attached to bolt bars used for locking the car door; that this door was negligently allowed to be open, and that by the movement of the train it was caused to swing outwardly at right angles to the car, and that the lever also upon the car door projected still further at right angles from the middle of the door, so as to reach over the space between the sides of the passing trains; that this projecting lever upon the door, while the car was passing the caboose, struck the side of the caboose, and as it passed along the side of the caboose, when it reached the window, struck the decedent on the left side of the neck, almost severing the head from the body, and pulling him violently from the window of the caboose, and thus instantly killing him.

The Erie train upon which the deceased was riding consisted of two engines and a caboose, and was running south on tracks of the defendant company. The freight train of the defendant company was running in the opposite direction upon tracks of the defendant company adjacent to the tracks upon which the Erie train was running, and this train consisted of an engine and some 12 or 15 cars. The caboose was a car having built on the top of it what is known as a 'cupola.' On the side of the caboose, and a few feet from the floor, a bench ran along the side of the caboose just below an open window. In the cupola of the caboose were two seats, one on the left-hand side of the caboose and the other on the right. Scheusenack, a brakeman in the crew of the Erie train, sat in the cupola on the right-hand side, and Plath, also a brakeman in the crew of the Erie train, sat on the left side in the cupola. Dix was kneeling upon the bench with his arms resting on the sill of the window on the right-hand side of the caboose, and at the side where the defendant's train was passing. There was a light in the caboose which shone over the back of Dix and through the window. Mr. Scheusenack was the principal witness of the accident, and he testified:

'I heard the sound of that door strike the front end of the caboose. * * * After I heard the noise of the car strike the front end of the caboose, it called my attention to the car, and I saw what it was; and just as I looked down I saw Mr. Dix going out of the window and right by his back I saw the refrigerator door pass by. * * * It was open. * * * Q. Will you please describe to the jury what marks there were upon the body, if any? A. Mr. Dix had a great big mark from here on, a way down here (indicating). Q. On which side of the head? A. On the left side. Q. What sort of a mark was it? A. It was a great big cut, just jerked right out. Q. How deep was that cut, if you know? A. It was quite deep. The head was almost tore off. Q. Was the left side of the face battered any at all? A. Yes; it was scratched. * * * Q. What other marks were on his head? A. There was a mark on the head where he struck the frame of the caboose, on the right side, and there was a mark on the left side here (indicating), and the middle of his head. Q. What was the condition of his face? A. The face was scratched. Q. On which side? A. On the right side. * * * Q. You only judge from the appearance of the door that it was a refrigerator car? A. I don't judge. I seen it.'

Charles J. Plath, a brakeman, who was in the cupola of the caboose, thus described the occurrence:

'Q. What kind of a noise was that you heard? A. A kind of dumb noise, a kind of a bang. Q. When you heard that bang, what happened? A. I twisted right around and seen Mr. Dix was going out of the window, looked like that, and he was gone.'

It appears from the evidence that, if the refrigerator door were open and the lever were projecting from it, it would have a reach of 36 inches. As the evidence shows the distance between the sides of the trains in passing was 33 1/4 inches and as the lever upon the door would reach 36 inches, it would allow the lever to project within the car window a distance of 2 1/4 inches. It thus appears from the plaintiff's evidence that the brakeman, Scheusenack heard the noise of something striking the side of the car, saw Dix go out at the window, and saw the swinging door of the refrigerator car. From the noise of something striking the side of the car while the train was passing, from the evidence that there was a swinging car door, that refrigerator car doors are so constructed with bar and lever that, when open, the lever will fly out straight at right angles to the car, that, if such lever was out, it would reach within the side of the caboose or into the window; and that the man disappeared through the window, that he was pulled out, and that he went so violently as to strike his heels against the top of the...