Erie R. Co. v. Kane

• Decision Date: 15 August 1902
• Docket Number: 944
• Parties: ERIE R. CO. v. KANE.
• Court: U.S. Court of Appeals — Sixth Circuit

118 F. 223

ERIE R. CO. v. KANE.

No. 944

United States Court of Appeals, Sixth Circuit.

August 15, 1902

John H Clarke, for plaintiff in error.

T McNamara and George F. Arrel, for defendant in error.

This is an action by the defendant in error against the plaintiff in error to recover damages for the wrongful death of her intestate, in which she obtained judgment for the sum of $4,000. The accident by which the decedent lost his life happened on the morning of December 17, 1897, after daylight. It was a collision between two trains which were being switched in the yard of the plaintiff in error at Niles Ohio, by two switching crews. In that yard there are two main tracks, extending through it east and west. The north track is used by through trains going west, and the south one by such trains going east. The depot is located north of both of them. The collision occurred on the north or west-bound track, a short distance west of the depot. The easterly one of the two trains was composed of a yard engine, at its western end, headed eastward, and without a pilot or cowcatcher, and 10 or 11 freight cars; that next to the engine being an empty gondola. It was proceeding west slowly, and had about come to a stop. It had come in upon that track from a side track to the north of it, and had not yet cleared the switch; and the purpose was for it, as soon as it had done so, to proceed eastwardly. The westerly train was composed of a yard engine and 8 freight cars. The engine was at its western end, headed eastward. The car next to the engine and that on the end were box cars; and those between, gondolas,--all loaded with coal. It was proceeding eastwardly at a much higher rate of speed than the other. It had come in upon that track from the south or east-bound track by means of a crossover between the two, the western end of which connected with the former just west of where the westerly train was about to come to a stop, and upon the south or east-bound track from the New Lisbon branch of the plaintiff in error, east of the depot. As it passed the depot it also passed the other train, going in the same direction at a slower rate of speed; and its conductor left it, to enter the depot. The decedent was the fireman on the engine in the easterly train, and at the time of the collision was at the front end thereof, upon the pilot, or bunting beam, or head bar, as it is variously termed, in front of the boiler, engaged in cleaning the number of the engine, located just below the headlight. The effect of the collision between the two trains was to cause a collision between decedent's engine and the empty gondola next to it, and, by reason thereof, to force the body of the latter up against the head of the former, catching decedent between them, and, as it seems, killing him instantaneously. The ground upon which it was claimed that the plaintiff in error was liable in damages for the death of decedent, thus caused, was that the collision between the two trains was due to the negligence of the engineer of the westerly train, named Bowker, in proceeding eastwardly on the north or west-bound track, with knowledge that decedent's train was thereon and had the right of way, at a high rate of speed, without orders so to do, without keeping a proper lookout, and without giving warning of the approach of his train by bell or whistle. It was not seriously contended that Bowker had not been negligent, and there can be no doubt but that he was. The plaintiff in error sought to defeat the recovery upon two grounds: One was that Bowker was the fellow servant of the decedent; and the other, that decedent was guilty of contributory negligence. In support of the latter contention, it proved that amongst the rules of the plaintiff in error, which decedent knew and had agreed to be governed by, was one in these words: 'They (firemen) must report for duty at the appointed time; attend to the fires of the locomotives when on the road, and to taking water and oiling the machinery; assist the engineman in watching for signals and obstructions; clean and polish their locomotives at the end of each trip; and assist in making repairs when necessary.'

Before LURTON and SEVERENS, Circuit Judges, and COCHRAN, District Judge.

COCHRAN District Judge, after making the foregoing statement, .

1. The plaintiff in error requested the lower court to give to the jury two instructions, in these words:

'No. 1. The court says to you, as a matter of law, that, upon the evidence introduced upon this trial, the plaintiff's decedent, Thomas Kane, a fireman upon one engine and with one train crew, was, at the time of the accident complained of in this case, a fellow servant with Bowker, the engineer of another engine, with another train crew, whose negligence, it is claimed in this case, was the proximate cause of the accident resulting in Kane's death, and that therefore the plaintiff cannot recover in this case, and you should return a verdict in favor of the defendant railroad company.'

'No. 10. The court instructs you that the plaintiff cannot be entitled to recover in this case unless you shall find from the evidence introduced in this trial that the engineer, Bowker, had charge or control of other employes of the company; and, if you conclude that the plaintiff has failed to show that fact by a preponderance of the evidence, she cannot recover in this case, and you should return a verdict in favor of the defendant railroad.'

It refused to give either one of these instructions, and, on the contrary, instructed the jury that Bowker was not the fellow servant of the decedent. The refusal to give these instructions was duly excepted to, and has been assigned as error. The lower court so acted because it was of the opinion that the second clause of the third section of an act of the legislature of Ohio passed April 2, 1890 (87 Ohio Laws, p. 150), as construed by the supreme court of Ohio in the case of Railroad Co. v. Margrat, 51 Ohio St. 130, 37 N.E. 11, applied to this case. That section is in these words:

'That in all actions against the railroad company for personal injury to or death resulting from personal injury of any person, while in the employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held, in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow-servant, but superior of such other employe; also, that every person in the employ of such company having charge or control of employes in any separate branch or department shall be held to be the superior and not fellow-servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.' The syllabus of the Margrat Case, which was prepared by the court, and expresses the law thereof, is in these words:

'(1) An engineer in charge of a locomotive on one train of cars of a railroad company is in a branch or department of its service separate from that of a brakeman on another train of the same company, within the meaning of the terms 'separate branch or department' as those terms are employed in section 3 of the act of April 2, 1890 (87 Ohio Laws, p. 150).

'(2) An engineer in charge of a locomotive, who has authority to direct or control a fireman serving on the same locomotive, is a superior within the meaning of the above-named section.

'(3) Whether an engineer or other employe of a railroad company has authority to direct or control other employes of the same company is a question of fact to be determined in each case. This may be done, however, either by proof of express authority, or by showing the exercise of such authority to be customary, or according to the usual course of conducting the business of the particular company interested, or of railroads generally.'

In the opinion, Judge Bradbury presents the reasoning upon which these conclusions were founded, in these words:

'The relation of superior and subordinate, however, did not actually exist between Margrat and the engineer by whose negligence he was injured; for, as we have seen, the latter had no authority to command or direct the former in discharging his duties. But the statute, we think, declares that relation to exist, as matter of law, for the purpose of charging the company, if the engineer was the superior of-- that is, was authorized to command or direct--any co-employe whatever, and Margrat was without such authority. They must have been in 'separate' branches or departments of the company's service, for the section so declares. The section, however, makes no attempt to define the terms 'departments' and 'branches,' but these terms should not be limited so as to embrace merely those large divisions created for convenience in administering the affairs of the company. On the contrary, it is more reasonable to suppose that they relate to those minute ones which concern the daily duties of the employes. Those terms are general and comprehensive, but, as the legislature discloses no purpose, in this connection, to regulate the internal affairs of a railway company, it should not be presumed to refer to divisions of its business made for its own ends; and, if not to such divisions, what divisions could it mean, but those which divide up the employes while in actual service? The section expressly declares a purpose to enlarge the remedy of the employes for accidents occurring in the course of their employment. This declaration emphasizes the presumption that the terms under consideration should be construed as referring to conditions...