Fentress Coal & Coke Co. v. Elmore

• Decision Date: 16 February 1917
• Docket Number: 2873.
• Citation: 240 F. 328
• Parties: FENTRESS COAL & COKE CO. v. ELMORE.
• Court: U.S. Court of Appeals — Sixth Circuit

240 F. 328

FENTRESS COAL & COKE CO. v. ELMORE.

No. 2873.

United States Court of Appeals, Sixth Circuit.

February 16, 1917

On Motion for Rehearing, April 13, 1917.

On Motion for Rehearing.

W. B Miller, of Chattanooga, Tenn., for plaintiff in error.

J. F McNutt, of Rockwood, Tenn., and J. T. Wheeler, of Jamestown Tenn., for defendant in error.

Before KNAPPEN and DENISON, Circuit Judges, and McCALL, District judge.

DENISON Circuit Judge.

In the court below Elmore recovered a judgment for personal injuries received while employed in defendant's mine. The case comes here upon the claims that there was nothing tending to show defendant's proximate negligence and that contributory negligence conclusively appeared.

The record indicates that the case came into the court below through removal from the state court, but the removal proceedings are not included in the transcript, and the transcript as filed in this court does not show federal jurisdiction. Since less than the whole record is here, and since all parties have assumed-- and still do-- that there was jurisdiction, we feel justified in concluding that the omitted proceedings sufficiently disclosed a diverse citizenship.

The question of negligence arises in this way: Elmore was doing, with reference to mine cars, the work done by brakemen and switchmen upon a surface road. The mine cars were small and short, and were coupled together by a hook on one of them engaging with an eye or link, carried by a chain, on the other. Two styles of hooks were in use: The later style, intended for the newer and heavier type of cars, was heavy and strong and made of cast iron or steel; the older style (in process of being supplanted, but still in considerable use) was of wrought iron, and of much lighter construction. In this style the normal hook was strong enough, and was sufficiently recurved, so that it would hold the link upon the hook in the exigencies of use; but as the hook became worn and weaker it tended, in use, to pull out straighter, so as to have merely a single, right-angled bend, in which condition it was unsafe, because so easily disengaged from the link by the shocks it naturally received.

While Elmore was lawfully riding on the tenth car of a train of such mining cars, which was coasting downgrade in the mine, the car on which he was riding became uncoupled from the one ahead, and the cut of nine cars ahead ran on uncontrolled; the last one of the cut was derailed, his car ran into it, and he was thrown off and hurt. Plaintiff's theory of negligence is that the uncoupling happened because the hook was worn and straightened.

It is first urged that a defective hook could not have caused the injury herein, because the uncoupling of the hook and link on the rear of the ninth car would have no tendency to derail that car. This would seem to be true on an ordinary train, but not so as to a train of very short cars running away downhill, on a rough track. In such a situation the rear car, deprived of the steadying influence of a coupled-up following car, would be distinctly likely to be snapped off the track, like the cracker of a whip. It cannot be denied that it was within the province of the jury to find that the uncoupling, if it occurred, was the proximate cause of the derailment.

It is next said that there is no evidence sufficiently tending to show that the uncoupling happened because of a defective hook, or that this particular hook was defective. There is no direct testimony to this effect; so the question is whether all the facts and circumstances are enough to justify a jury in concluding, as this jury did, that this hook was defective. When these facts and circumstances are collated, it is seen that the defendant was customarily using these hooks, which customarily became defective; that the cars of this type were continually being sent to the repair shop to have the hooks repaired and rebent; that one of these hooks, so straightened that its use in that form was conceded to be negligent, was found upon one of the cars two or three days after the accident; that shortly before the accident an employe represented to the superintendent that a group of these cars had their hooks in such condition that they ought to go to the shop for repairs, and that the superintendent gave instructions to use them a few trips more before so doing; and that no other reasonably probable cause for the uncoupling is suggested by the record. Taking all these things together, we think they furnish legal justification for a finding of the jury that the hook on this car was sufficiently defective, and had been so long enough, to have raised on the part of defendant the duty of such repair as was necessary to make it safe. We classify this case with our previous holdings in such cases as Felton v. Newport, 105 F. 332, 44 C.C.A. 530, and Pittsburgh Co. v. Scherer, 205 F. 356, 123 C.C.A. 484, rather than with such cases as Smith v. I.C.R.R., 200 F. 553, 119 C.C.A. 33, and Richards v. Mulford, 236 F. 677, . . . C.C.A. . . . .

There remains the question of contributory negligence, which in Tennessee is still a bar to recovery by plaintiff.

It is said that Elmore's duties were such that upon him rested the primary duty of inspection, that the company would know of the unsafe condition of such hooks only through reports made by Elmore, and that his negligence in not reporting the defect, but in continuing to use the car, directly contributed to the result. On the other hand, it is said that he had no duty of inspection to such an extent as to supplant the employer's primary duty, and that his whole work with the mine cars was underground and in the dark, so that he would not naturally have discovered this defective hook, but would have learned of it only by chance. In this connection a controversy has arisen whether Elmore's work was or was not wholly underground, and whether, when he says that he gathered these cars together and helped make up this train 'about two miles from the mouth of the mine,' he means two miles inside the mouth or two miles outside the mouth. On this subject the record brought to this court is uncertain and confusing. The question of contributory negligence was submitted to the jury under a charge to which neither party excepted. We have examined the record with special reference to this phase of the case; and when we give due effect to the fact that the superintendent in authority over Elmore regarded the cars...