Erie R. Co. v. White
| Decision Date | 04 April 1911 |
| Docket Number | 2,068. |
| Parties | ERIE R. CO. v. WHITE. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Cushing Siddall & Palmer, for plaintiff in error.
Skiles Green & Skiles, R. G. Newcomb, for defendant in error.
Before WARRINGTON and KNAPPEN, Circuit Judges, and DENISON, District judge.
The administratrix (hereinafter called plaintiff), in the interest of those dependent upon the deceased, recovered in the court blow a judgment for damages resulting from his death. The action was based upon the negligence of the railroad company (hereinafter called defendant) in not properly blocking a guard rail. Deceased was a switchman of considerable experience, employed in the yards at Kent, Ohio. In the process of making up a train, the engine pushed back a string of several cars coupled together, and it became White's duty to break the train at a certain point. He was seen walking alongside the train at this point as it was moving slowly to the rear, and he apparently tried, from this position, to operate the coupling. He was then seen to step between the cars, while they were still in motion. Later his body was found a little further along, crushed and mangled. One shoe was found near the guard rail, and its broken lacing indicated that the foot had been torn out while the shoe was held fast. The action was brought and the judgment rendered upon the theory that the guard rail was blocked by a piece of wood which, at the outer end, was too thin, so that it left between its upper surface at the edges and the lower part of the ball of the rail, space sufficient to catch and hold the projecting edges of the sole of a shoe, and that, as White was walking along, between the moving cars, endeavoring to open the coupling, his foot was caught in this space, as in a trap.
Aside from the question of fact as to the defective condition of the block, the substantial defenses were: First, that White's act in going between the moving cars was either itself the proximate cause of his injury or was contributory negligence; and, second, that a guard rail or a frog perfectly blocked is nevertheless dangerous, in that, even when the block is as thick as the flange of the wheels will permit, there is still danger of catching the sole of the shoe between the upper surface of the block and the under swell of the ball of the rail, so that the alleged defective blocking would only create a slightly greater degree of the same danger which must always exist, and hence the defect in the block did not break the proximate relation connecting walking along between the cars as the cause and the injury as the effect.
The case was tried upon issues made in terms of proximate cause and remote cause, rather than in terms of negligence and contributory negligence; but in the facts of this case we see no substantial distinction between the different terms. The recovery must rest upon the negligence of the defendant in performing its duty to provide a safe place to work, or the equivalent statutory duty, and whether it should be said that White's act in going between the cars was contributory negligence, or was an independent cause, intervening between the negligent blocking and the injury, does not affect the result.
Under the charge, the verdict of the jury amounts to a finding that the defective condition of the block was the proximate cause of the injury, and that the going between and walking along between the cars was not such proximate cause.
By an Ohio act approved February 28, 1908 (99 Ohio Laws, p. 25) and entitled 'An act to qualify the liability of railroad companies for injuries to their employes,' it was provided that every railroad company operating within the state should be liable for damages resulting from the injury or death of an employe, 'when such injury or death was caused by a defect in any * * * rail, track * * * required by such company to be used by its employes, * * * and any such employe * * * shall not be deemed to have assumed the risk occasioned by such defect. ' The act further provided that contributory negligence ...
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