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