Erie R. Co. v. Rooney

• Decision Date: 04 April 1911
• Docket Number: 2,076.
• Citation: 186 F. 16
• Parties: ERIE R. CO. v. ROONEY.
• Court: U.S. Court of Appeals — Sixth Circuit

186 F. 16

ERIE R. CO. v. ROONEY.

No. 2,076.

United States Court of Appeals, Sixth Circuit.

April 4, 1911

Cushing Siddall & Palmer, for plaintiff in error.

Skiles Green & Skiles and R. B. & A. G. Newcomb, for defendant in error.

Before SEVERENS and KNAPPEN, Circuit Judges, and SANFORD, District judge.

KNAPPEN Circuit Judge.

The defendant in error (hereafter called the plaintiff) recovered verdict and judgment against the plaintiff in error (defendant below) on account of personal injuries received by plaintiff in the course of his employment by defendant as engine hostler. A motion for a new trial was denied. The facts are these:

While plaintiff was driving a locomotive over a lead track in defendant's yard at Kent, Ohio, for the purpose of coaling the tender at the tipple, the cab in which the plaintiff was riding collided with the end of an empty coal car, projecting or pushed over from a switch track communicating with the lead track, as the engine driven by plaintiff was passing the switch. It was plaintiff's contention that the coal car was pushed from the switch track into collision with the cab of the locomotive by the action of defendant's so-called 'west end' switching crew. The negligence alleged in plaintiff's amended petition was, first, permitting the coal car to be so close to the lead track as to be pushed over onto that track when the string of cars of which it was a part was bumped into, as alleged, by the switch engine at the other end of the string; and second, causing the string of cars to be so bumped as to push the coal car upon the lead track, while the locomotive in question was passing the switch. Plaintiff testified that as he approached the switch in question, at a speed of from 5 to 7 miles an hour, and when 50 or 60 feet from it, he saw that the lead track was entirely clear; the track being substantially straight. He testified:

'Everything looked clear, and seeing the injector was not shut off tight, and I reached, and it was leaking, and I reached in an shut it off tight, and looked down, and as I looked up I suddenly saw a coal car coming into me'

-- and that the car then crashed into the cab of the engine where the plaintiff was standing. His testimony, if believed, supported his contention that the coal car was entirely out of striking distance from the lead track, until pushed thereon just before the locomotive on which plaintiff was riding reached the switch.

At the close of all the testimony, the defendant requested, in writing, a verdict in its favor, which was denied. The jury was instructed that the plaintiff could not recover, 'if the accident happened merely because there was a string of cars or a car that projected standing out on the lead track,' and that no recovery could be had unless the coal car was pushed or bumped over from the switch track onto the lead track as the locomotive was passing the switch. The court, after instructing the jury generally upon the subject of the care required of the plaintiff, said, with special reference to the plaintiff's act in turning to attend to the injector:

'Now, if you find that his thus withdrawing his attention, to whatever extent he may have done so, from the situation was such a violation of his duty to look out as to be a lack of ordinary care under the circumstances, * * * and that such lack of ordinary care approximately contributed to the accident, then he cannot recover in this case, and your verdict should be for the defendant.'

Defendant took no exception to the charge of the court in any respect. The only alleged errors argued in briefs of counsel relate to the refusal to grant defendant's request for a direction of verdict. We do not understand the other errors assigned are relied upon.

Defendant contends that such direction of verdict should have been given, first, for lack of evidence that the coal car was in motion at the time of its collision with the locomotive; and, second, that the plaintiff by his own admission was contributorily negligent. The case seems to have been tried, upon both sides, upon the theory that the defendant was negligent if the coal car was pushed onto the lead track while plaintiff's engine was passing over it. Such was the charge of the court, which was not excepted to, and no suggestion of a contrary rule seems to have been made in connection with the motion for a direction of verdict. We are thus not called upon to consider the correctness of that proposition.

Plaintiff contends that the insufficiency of the evidence to support a verdict can only be raised by motion at the close of the testimony as distinguished from a written request for an instructed verdict. There is no merit in this proposition. It is immaterial whether the ...