Eker v. Pettibone, 6994.

• Decision Date: 13 March 1940
• Docket Number: No. 6994.,6994.
• Citation: 110 F.2d 451
• Parties: EKER v. PETTIBONE.
• Court: U.S. Court of Appeals — Seventh Circuit

110 F.2d 451 (1940)

EKER v. PETTIBONE.

No. 6994.

Circuit Court of Appeals, Seventh Circuit.

March 13, 1940.

Cope J. Hanley, of Chicago, Ill., Frederick C. Crumpacker, of Hammond, Ind., and Owen W. Crumpacker, of Whiting, Ind., for appellant.

Timothy P. Galvin, of Hammond, Ind., and Charles L. Vaughan, of LaFayette, Ind., for appellee.

Before EVANS, MAJOR, and KERNER, Circuit Judges.

MAJOR, Circuit Judge.

This appeal is from a judgment in a suit to recover damages sustained by reason of the death of plaintiff's intestate.

The action was predicated upon a complaint of two paragraphs, the first charging a violation of the Boiler Inspection Act, 45 U.S.C.A. § 23, and the second, negligence in violation of the Federal Employers' Liability Act, 45 U.S.C.A. §§ 51-59. The only question here raised is whether or not the evidence was sufficient to justify the action of the court in refusing to direct a verdict for the defendant.

On June 12, 1936, about 5 o'clock P. M., defendant's freight train, consisting of the engine and 41 cars, was traveling north at the rate of 35 miles per hour in Putnam County, Indiana. At a point near Putnamville, the engine and 16 cars were derailed, and plaintiff's decedent, the engineer, was killed by escaping steam. It is undisputed that the derailment was occasioned from the fact that the pony-truck (the small wheels in front of the drivers) jumped the tracks. This happened 4,556 feet south of the point of final derailment and for this distance, the train traveled with the pony-truck off the rails. This was plainly evidenced by the marks, cuts and damage shown to have been done to the ties and road bed. A short distance north of the Putnamville station, there extended from the main track a switch, and when the train arrived there, the pony-truck followed the switch tracks, causing the wreck. As the train approached Putnamville, the conductor, fireman and head brakeman were in the engine cab with the decedent. The first two were witnesses at the trial. According to their testimony, they had no information that anything was wrong until at a point about 500 feet south of the final derailment. At that point the engine lurched and the engineer threw on the emergency brake and did what he could to stop the train.

The pony-truck wheels are at the front of the engine immediately behind the pilot. They serve as guides or pilots and carry a portion of the weight of the engine. They weigh about 8,000 pounds and are fastened to the frame of the engine by a pin, called the radius bar pin, extending through the hole in the radius bar. This pin is held in place by a rectangular plate (weighing 35 pounds), bolted to the frame of the engine at each corner. This plate is held to its position by four bolts, one at each corner. About three weeks prior to the wreck, the engine had been overhauled, the worn parts renewed and a new radius bar pin and plate installed. The engine was inspected on the day and just prior to the start of its ill-fated trip. At that time the four bolts connecting the radius bar plate to the frame of the engine were in position. After the accident, two of the bolts holding the plate to the frame were missing and the plate was slightly separated from the frame. There was evidence more or less of an opinion character, to the effect that it appeared the bolts missing from the radius bar had been off for some time. A number of witnesses testified for the defendant that the absence of the bolts could not have caused the pony-truck to leave the rails.

There was evidence, although disputed, that the ties in the road bed were rotten and split; that they were worn; that the rails were sunk deeply into the ties and, that there were places where the water stood around the ties. The track and right-of-way were inspected and thoroughly searched by railroad employees, officials and other persons following the accident, for evidence which might account for the derailment, but without success.

About 700 feet south of the point where it appears the pony-truck left the track, one Evans was plowing corn in a field adjoining the railroad. He testified, as the train passed, that he heard a snapping sound; that something seemed to break and quite a bit of gravel was thrown over him and his team. The next day he examined the track at the point where the engine was at the time of the occurrence of the incident on the previous day and found a fresh scar three inches long on the top of one of the rails. Nearby was a hole in the road bed about the size of a man's hat.

The Section of the Boiler Inspection Act relied upon, provides: "It shall be unlawful for any carrier to use or permit to be used on its line any locomotive unless said locomotive, its boiler, tender, and all parts and appurtenances thereof are in proper condition and safe to operate in the service to which the same are put, that the same may be employed in the active service of such carrier without unnecessary peril to life or limb * * *." 45 U.S.C.A., Sec. 23.

The complaint charges that the locomotive was not in proper condition and safe to operate, but instead was an unnecessary peril to life and limb in that the pony-truck of the locomotive was negligently and improperly secured; that the king pin which held said trucks in place had become loose, worn and out of repair and, that the pony-truck was defective and negligently permitted to remain in said condition.

Defendant concedes that its duty is mandatory and absolute — the construction often placed upon this Act — yet it argues there can be no recovery because (1) there is no evidence of a violation of the Act, and (2) that even if so, it was not the proximate cause of decedent's death. A study of the cases relied upon by both parties convinces us that its contention must be denied.

The decision in Minneapolis & St. Louis R. R. Co. v. Gotschall, 244 U.S. 66, 37 S. Ct. 598, 61 L.Ed. 995, in our judgment, comes near being decisive. There, a brakeman was walking along the top of a train of cars when the train separated because of the opening of a coupler on one of the cars, resulting in an automatic setting of the emergency brakes and a sudden jerk which threw the brakeman off the train, by which he was killed. It was there contended there was no evidence of neglect on the part of the company except the mere fact that the coupler failed to perform its function and, that to permit the jury to infer negligence amounted to an application of the principle designated as res ipsa loquitur. With reference to this contention, and the cases cited in its support, the court, on page 67 of 244 U.S., 37 S.Ct. at page 599, 61 L.Ed. 995, said: "* * * We think the contention is without merit because, conceding in the fullest measure the correctness of the ruling announced in the cases relied upon to the effect that negligence may not be inferred from the mere happening of an accident except under the most exceptional circumstances, we are of opinion such principle is here not controlling in view of the positive duty imposed by the statute upon the railroad to furnish safe appliances for the coupling of cars. * * *"

This court in Vigor v. Chesapeake & O. Ry. Co., 7 Cir., 101 F.2d 865, had before it a case, the facts of which were much like those in the Gotschall case. The accident was due to the failure of a car coupler to properly operate. It was shown that it was in proper condition both before and after the accident. The court said, 101 F.2d at page 868: "* * * If a coupler fails to function, such fact is sufficient evidence of its defective character regardless of how it functioned before or after such failure. Citing cases * * *"

In Anderson v. Baltimore & O. R. Co., 2 Cir., 96 F.2d 796, the plaintiff was killed by a train on an adjacent track while standing beside his engine for the purpose of ascertaining why its sanding apparatus had failed to function. The court, on page 798 of 96 F.2d said: "* * * The failure of the apparatus gave rise to an inference of some defect, and whether that inference was overcome by the defendant's explanation was a question for the jury on all the evidence. * * *"

In Didinger v. Pennsylvania R. Co., 6 Cir., 39 F.2d 798, the court considered a case based upon Sec. 11 of the Safety Appliance Act, 45 U.S.C.A. § 11,...