Farley v. Cincinnati, H. & D. R. Co.

• Decision Date: 02 April 1901
• Docket Number: 899.
• Citation: Farley v. Cincinnati, H. & D. R. Co., 108 F. 14 (6th Cir. 1901)
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: FARLEY v. CINCINNATI, H. & D.R. CO.

108 F. 14

FARLEY v. CINCINNATI, H. & D.R. CO.

No. 899.

United States Court of Appeals, Sixth Circuit.

April 2, 1901

This action was brought to recover damages for a personal injury suffered by plaintiff in error on the 24th day of November 1898, while in the employ of the United States as a postal clerk in the railway mail service. His work as such clerk was in a post-office car provided for the purpose, and consisted in the reception, assortment, and distribution of mail matter in said car, on what is called the 'run' between Cincinnati, Ohio, and Indianapolis, Ind. This mail car, in which plaintiff in error discharged his duties, was a combination mail, express, and baggage car, with three apartments, and was carried in trains of the defendant in error operated between said cities. These trains departed from Cincinnati at 8:45 p.m., arrived at Indianapolis at 12:45 a.m., left Indianapolis at 3:45 p.m. and arrived in Cincinnati at 7:30 a.m. the next morning. Plaintiff had been in the railway mail service fourteen years before the accident, and for more than two years on the run between Cincinnati and Indianapolis. Two clerks were engaged in the service on this line, working in turns during alternate weeks. The other clerk was John B. Connor, who had been engaged in the service for a period of about fourteen years and on this particular run about four years, preceding the accident. On the day of the accident there had been a wreck on the road, and plaintiff in error came in to Cincinnati that morning on another train. In the evening he went to the express office, about the usual hour, and inquired at the office of the defendant in error about his car, and was told that it would be in on train 41, which was due at 6 o'clock, but which was in fact 24 minutes late. When train 41 arrived in the depot with the mail car attached plaintiff in error boarded his car immediately, and proceeded to change his clothes and prepare for the work to be done. The car had just come in from the north as part of the train, from which it had not been disconnected at the time plaintiff in error entered. When the post-office car had been separated from the train, it was switched up into the yard for the purpose of being furnished with gas and otherwise prepared for the trip. While on this switching run the coupling which attached the car to the switch engine broke, and this car collided with other cars. As a result of this collision, it is alleged in the petition that the plaintiff in error was knocked down against a table, and upon the floor of the car, and received severe injuries on his shoulders, arms, and in his leg and spine. The action is grounded on the charge that the collision was caused through the negligence of the defendant, its agents and servants. The answer to the petition puts in issue the general charges of the petition, including the charge of negligence, and specifically denies that the plaintiff in error was, at the time of the accident, in the line of his duty as railway postal clerk, or that he was rightfully on the car, which, as the answer states, was at the time in the switching yard of the defendant.

These mail clerks were introduced by the plaintiff in error, and were the only witnesses who testified in the case. They agree in the statement that it was customary for the railway mail clerks to enter the post-office car at the platform of the express office, where mail and express matter were delivered and placed on board the car. In the ordinary course of business, when the car was boarded by the postal clerks at the express office, and at the usual time, it had already been supplied with gas, ice, and was lighted, ready for the trip, and was carried from that place to the depot, and attached to the train in proper position for the run. Although the train did not leave Cincinnati for Indianapolis until 8:45 p.m., the mail clerks, as a rule, went on duty about 6 o'clock p.m., in order to arrange the car for the first delivery of mail, which came from the post office to the express station at 7 o'clock p.m.

At the close of the plaintiff's evidence, the court, on motion directed a verdict in favor of the defendant, to which exception was duly taken. The case was afterwards submitted to the court on motion for a new trial, and, in overruling this motion, the learned circuit judge, after making certain observations in relation to the case, not material to be now repeated, went on to say: 'A well-established usage and custom, shown by the evidence, required the clerk on duty to board the postal car at the express platform in the defendant's yards at Cincinnati a few minutes before or after six in the afternoon of each day, where the mail would be delivered to them about 7 o'clock, and at 7:15 the car would be pulled over to the depot and put into the train. The car, when boarded by the postal clerk at the express platform, would be gassed, lighted, and iced, and prepared to go on the trip. It was well understood by the railway mail clerks, the post-office employes who delivered the mail, and the railroad men who assisted in placing the mail in the postal car, that the car would be at the express platform as early as 6 o'clock. Connor, in his examination in chief, testifies as follows: 'Q. Well, Mr. Connor, when you would go down there, you say you would find this car at the express office. Did it ever happen in your fourteen years, or during the four years you were on this run, that the car was not at the express office? A. Yes, sir; it happened on two occasions. Q. Two occasions, with you? A. Yes, sir. Q. where would you find it at these times? A. One night there was a car short, and it came in on the day train, and we took it back, and I believe another time there was something the matter with one of the cars, and they substituted another car for it. Q. when the car was not at this place, where would you go? A. Well, I would go wherever I could find it. I got it in the depot on one occasion. Q. Do you know from your personal observation, in the railway mail service for fourteen years, what has been the custom on that road, in those yards, of the railway postal clerks, in that particular, as to getting on the cars when the time come to get on them? A. No, sir; I cannot answer that, any more than I would get in there wherever I would find the car. Q. Have you seen other postal clerks, as it come under your knowledge and observation on other runs than this one? A. They generally do that; yes, sir.' Plaintiff testifies, in a general way, that it was his practice to get on the postal car wherever he found it, and that in the course of his service he got on it at other places than at the express platform, but he gives no instance of having done so, except the occasion when he was injured. The ordinary passenger boards the train at the depot, but the railway mail clerks were permitted to board the postal car at the express platform, and the practice, in that respect, had become so well established at the time of the plaintiff's injury that the employes of the post office and the clerks in the railway mail service knew it, and the officers and agents of the defendant also knew or were bound to know it. During the fourteen years these clerks had been running on the defendant's road only three instances are shown where this practice was departed from, two within the experience of Mr. Connor, and the occasion when the plaintiff was injured; although the plaintiff, as I have already said, in a general way, speaks of boarding his car wherever he could find it, and of other clerks doing the same thing. The railway mail clerks might get on the car in the depot after it was attached to the train, but there was no practice or usage which would justify them in getting on the car at any point outside of the depot other than at the express platform. The evidence fails to show any practice or usage which would put the defendant on notice that the plaintiff was in the car at the time he was injured. It was suggested by counsel that there is evidence tending to show that the railway mail clerks were always, or, at least, as a rule, in their cars at about 6 o'clock in the evening, and that, therefore, the defendant was put upon notice that the plaintiff was in this car...