Gibson v. Southern Pac. Co.

• Decision Date: 13 December 1933
• Docket Number: No. 7144.,7144.
• Citation: 67 F.2d 758
• Parties: GIBSON v. SOUTHERN PAC. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

67 F.2d 758 (1933)

GIBSON v. SOUTHERN PAC. CO.

No. 7144.

Circuit Court of Appeals, Fifth Circuit.

December 13, 1933.

Henry T. Moore and Robert L. Holliday, both of El Paso, Tex., for appellant.

M. Nagle and Maury Kemp, both of El Paso, Tex., for appellee.

Before BRYAN, FOSTER, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

Appellant, a cattle shipper accompanying a shipment, while riding as a passenger in the caboose of one of appellee's freight trains, was thrown from his seat in the caboose by the sudden and violent stopping of the train on the morning of March 3, 1932, as it pulled into Indio, Cal. To recover the damages caused by the injuries he claims to have received, he sued in three counts. The first two alleged a negligent stopping and a negligence breaking of the train in two, from causes known to the defendant but not to plaintiff, the train being at the time entirely in the charge and under the control of its employees. The third count alleged that the train both negligently broke in two and stopped, and set out specific grounds of negligence that the train, consisting of one hundred cars, was too long for careful handling; that this caused it to be operated, and it was operated, in a rough and jerky manner, and it had been operated during the night before in a rough and jerky manner, thereby placing an unusual and dangerous strain on the couplers and coupling devices, causing them to break in two; that the couplings were in a weak and defective condition, and were not properly fastened; and that there was negligence in the handling of the train so as to bring it, or permit it to come to, a stop in such a violent manner.

Plaintiff testified that this was the roughest operated train he ever rode on, and in addition to the evidence of the violence attending the stopping of the train on that morning when he was injured, he testified, and in this his witnesses corroborated him, that the train had been stopping and starting throughout the night, with terrific jerks and jolts, plaintiff testifying that he had been thrown from his seat once before that night by the sudden and violent stopping, and that during the night the train had come in two at least once. He offered the evidence of an engineer as to the manner of stopping trains. This witness testified that the longer the train was the more shocks and jolts you are going to have in it. That that was because of the slack action between cars and the draw bars and springs. That the long train makes its operation rough, and it is more difficult to handle, but that such a train could be operated without jerking, if carefully handled. Of the effect on the coupling devices between the cars of the constant jerking he said:

"There is an iron underneath that draw bar which will finally wear off, sheer off, the draw bar will come down and the train will part and break the air hose. If you are going to make a coupling the switchman would shove down on the pin with his left hand and he would have to open that knuckle with his right hand. You have got to raise that pin to open the knuckle and the other car comes in there and there is an impact against this and the pin drops. If the train is moving along on level ground and there is pressure against this knuckle you can't pull the pin. If there is slack between the draw bars and the train is moving it will open up, and if it opens up the train is uncoupled. If there is no slack you can't lift the pin. If the engine is moving six, eight or ten miles an hour ahead there will be no slack."

When plaintiff closed his testimony though he had not proved what caused the train to come to its sudden stop, he had proved that it did so, and that such stopping was not consistent with that very high duty of care in the handling of the train that as far as human care and foresight can go he will transport him safely which defendant owed him as a passenger. In short, his proof made out a strong case of negligence which, unexplained, entitled him to go to the jury if it did not demand a verdict in his favor. Chicago, M. & St. P. R. Co. v. Irving (C. C. A.) 234 F. 562; Lehigh Valley R. Co. v. Ciechowski (C. C. A.) 10 F.(2d) 82; Stokes v. Saltonstall, 13 Pet. 181, 10 L. Ed. 115; Texas-Louisiana Power Co. v. Daniels (Tex. Civ. App.) 61 S.W.(2d) 179, 184.

Defendant, to rebut the case made, offered the testimony of Blake, one of its employees, a brakeman, who was to join the train at Indio, to the effect that he had walked down to the train, and was, in accordance with the duty imposed on him, making a rolling inspection of it as it pulled in, each brakeman being responsible for so many cars, and that as it rolled in some tramps were getting off a gondola car just as the cars passed him, and he saw one of them, a young boy, come down the ladder at the end of the car, and step on the coupling pin lever, lifting the pin out so that the cars became uncoupled. Whereupon the other cars ran up on it like running into a mountain. This evidence is so important in the case that we set it out substantially in the margin.¹

No other witness saw what Blake claims to have seen. Other witnesses for defendant were the engineer, the conductor, and four brakemen. The engineer testified that his equipment was in good order; that he was going to stop on the side track in the yard; that he had pulled in on the track preparatory to stopping, and was going in at about four or five miles an hour; that the slack was in because he was preparing to stop, slowing the engine up; that would have a tendency to push the cars up toward the engine and put the slack in.

"It is impossible to pull the pin when the slack is out. I began to see, as I was pulling in, that I was going to stop a bit short, and I began to work steam, pull the train a little bit further. The train parted, and the brakes automatically went into emergency. We came to an immediate stop. I later received a back up signal from Blake and responded to the signal. I backed up and coupled up, pulled the train about five or six cars beyond, and stopped again."

On cross-examination he said:

"I was not working steam when this accident occurred. I did say I was going to stop a little bit short, so I began to work steam, and the minute I started to work steam the train parted. When you apply steam under those circumstances it will not break the train in two unless the pin is pulled out. The train will not be pulled in two unless there is something wrong with the cut lever. The train cannot be pulled in two unless something gives way. There might be something wrong with the coupler and pull it in two. If the jerk is hard enough something will give way. If you apply the steam correctly there is no jerk to it. If there was a jerk it was not applied correctly. There is no way you can stop these long trains without the slack being taken up. The best way to stop a train is the easiest way. There is a way to stop a train without taking the slack, but you had better not do it because it might jerk the train in two. You can put on the brakes and work the steam and automatically you will stop and the slack will not be taken up. That is not the proper way to stop a train.

"There is more strain on the couplers and the coupling devices in a long train than a short one but the equipment carries it through."

The conductor testified to the violence of the stop, to Gibson's being thrown against the stove, and that the train was going about five or six miles an hour when it stopped; that the engineer was pulling in and he had not applied the air yet. That the train had become uncoupled twice before that night; both times it was coupled up and the train pulled on again. At both times the train was standing still. At neither time did he examine the couplers. He testified that the train was full of hoboes all night and that he would put them off whenever he saw them.

Justice, a brakeman on the cars as they came in, testified that he was about four cars from the engine looking toward the rear of the cars, and that he noticed a lot of trespassers getting out of a gondola car; that the train suddenly stopped and went into emergency. These trespassers were all going toward the highway, looked like possibly a dozen of them. "Another brakeman who was going out on that train I noticed on the engineer's side of the train, and he went through where this breaking in two was and started after these trespassers but they all got away, and he came back and closed the angle cock, coupled it up and the train pulled on in the clear. If the car is coupled the only way those cars can come apart is for the knuckle pin to be pulled or the breaking of the knuckle. There is no other way the train can come apart."

Another brakeman testified to seeing the tramps getting out of the cars. About that time he saw the dust flying and the brakes go on. He saw Mr. Blake, the man that was going out, standing right there, saw him run through the cars to the highway, come back, give the sign to back up and couple the train up which they did and pulled on into the yard. That he could see the heads of these hoboes on this particular car pulling in the yard. Every time he saw these hoboes he had told them to get off, and he did this on this particular car a couple of times during the night. These hoboes got off, and as soon as they got them away they got right back on. Other brakemen testified to seeing hoboes on the train and to the fact that after the train broke in two it coupled up and pulled on into the yard.

Plaintiff, in rebuttal of the testimony that the cars were recoupled without delay, offered testimony that trains carry emergency couplers which could be put on in thirty seconds. This evidence was refused as having no probative effect.

When the defense evidence as to the trespassers came in, plaintiff asked leave to file a trial amendment to conform the pleading to the proof, alleging negligence in not keeping trespassers...