Grand Trunk Western Ry. Co. v. Lindsay

• Decision Date: 02 January 1912
• Docket Number: 1,826.
• Citation: 201 F. 836
• Parties: GRAND TRUNK WESTERN RY. CO. v. LINDSAY.
• Court: U.S. Court of Appeals — Seventh Circuit

201 F. 836

GRAND TRUNK WESTERN RY. CO. v. LINDSAY.

No. 1,826.

United States Court of Appeals, Seventh Circuit.

January 2, 1912

On Rehearing, November 25, 1912. [Copyrighted Material Omitted]

Defendant in error, herein called plaintiff, was a switchman on defendant's railroad. On the night of September 21, 1908 he was severly injured by having his hand and arm caught and crushed while trying to lock the coupler between two freight cars; amputation of the arm near the shoulder being found necessary. Suit was brought February 11, 1909, in the state court, and removed to the Circuit Court by reason of diverse citizenship.

In the declaration are two counts, the first based upon both the federal Safety Appliance and Employers' Liability statutes, and the second on the Liability Act alone. In both counts it is alleged that the railroad and train were interstate, defendant then and there a common carrier in interstate commerce, plaintiff then and there employed in such interstate commerce, and that by reason of negligence of defendant, and without negligence on his part, plaintiff was injured. The first count claims a defective coupler as an additional ground of liability, under the automatic appliance statute, and alleges that by reason of such defective condition plaintiff was obliged to go between the cars to adjust the coupler, and while so engaged the cars were negligently pushed together, resulting in the injury.

The evidence clearly showed the coupler defective. After repeated trials it would not work. It was tried by a number of workmen and the chief car inspector, and the lock was finally taken out and another put in. The old lock was not produced at the trial.

It was the plaintiff's duty to couple the car having the defective coupler to another. In order to do this it was necessary for him to go between the cars. Before going between the cars plaintiff gave the conductor and his fellow switchman and the engineer a hard stop and stand signal which, in railroad usage, meant that he was going between the cars, and that they should not be moved until he gave another signal. This signal was received and answered by the conductor and plaintiff's fellow switchman. While plaintiff was between the cars and endeavoring to adjust the defective coupler so it could be coupled, the cars were, without notice or warning to him, suddenly shoved together, and his right arm was thereby so crushed that it became necessary to amputate it within three inches of the shoulder. This movement of the cars, the evidence tends to show, was due to the engineer's supposition that a 'come ahead' signal had been given.

No 'come ahead' signal was given by the plaintiff, but the foreman of the switching crew got such a signal from some one and gave it to the engineer. The foreman in the darkness could not tell who gave it, though he knew plaintiff was between the cars trying to couple them, and the signal came from that place. There was a car oiler with a lantern near plaintiff on the same side of the train, who testified that neither he nor plaintiff gave a 'come ahead' signal, though the oiler says he made movements of his lantern, while at work, which may have been mistaken by the foreman for a come on signal. There is no contradictory testimony, except an affidavit as to what the testimony of the engineer would have been, if called, used by agreement by reason of his absence at the trial. This affidavit states that 'plaintiff gave a signal to Conroy to come ahead, and Conroy repeated it to him as such engineer, and in obedience to such signals he began shoving said cars together. ' It is, however, perfectly evident that in the darkness the engineer could not see who gave the signal; his statement that plaintiff gave it being clearly not within his knowledge or observation. In the nature of things he could not know.

The jury found a general verdict for plaintiff, and also answered in the affirmative the following special questions:

'Do you find from the evidence that the defendant was guilty of a violation of the Safety Appliance Act, as charged in the first court of the declaration?

'If you find that the defendant was guilty of a violation of the Safety Appliance Act, as charged, do you find from the evidence that such violation was a proximate or concurrent cause of the plaintiff's injury? 'Considering all the evidence, including the plaintiff's conduct, both in going between and while between the cars, do you find that he was in the exercise of ordinary care for his own safety?'

By the Safety Appliance Act of March 2, 1893, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174), 6 Fed.Stat.Ann. 752, amended by Act May 30, 1908, 35 Stat. 476 (U.S. Comp. St. Supp. 1911, p. 1326), Fed. Stat. Ann. Supp. 588, and by Act April 14, 1910, 36 Stat. 298 (U.S. Comp. St. Supp. 1911, p. 1327), it is provided that it shall be unlawful for a common carrier engaged in interstate commerce to haul or permit to be hauled on its line any car used in moving interstate traffic not equipped with complete couplers coupling automatically by impact, and which can be coupled without the necessity of men going between the ends of the cars; also that employes do not assume the risk of the prohibited use of any such car, although continuing in their employment after the unlawful use is brought to their knowledge.

The following provisions of the Railroad Employers' Liability statute of April 22, 1908, are material:

Section 1: 'Every common carrier by railroad, while engaging in commerce between any of the several states or territories * * * shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, * * * for such injury * * * resulting * * * by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances * * * or other equipment.'

Section 3: '* * * The fact that the employe may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe: Provided, that no such employe who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.'

Section 4 abolishes assumption of risk in case of the violation of such a statute as is mentioned in section 3. Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322), Fed. Stat. Ann. Supp. 584, 585.

Assignments of error:

'(1) The declaration does not state a cause of action.

'(2) The court erred in admitting in evidence the following: 'Q. In the ordinary working of these couplers when they are in ordinary repair, can a man shove them in with his heel as well as his hand? A. Yes.' The question was duly objected to, on the ground that the witness was not qualified, and as calling for a conclusion.

'- '(5) Plaintiff was guilty of contributory negligence which bars his right to a recovery.

'(6) The court erred in requiring the jury to make the special findings above stated.

'(7) The court erred in refusing the following instruction: 'The court instructs the jury that the testimony of defendant's car inspector, Hanses, that he did inspect the car in question and did not discover any defect in the coupler, that his testimony should be given the same consideration, other things being equal between the witnesses, as positive testimony.'

'(8) The damages are excessive.'

George W. Kretzinger and L. L. Smith, both of Chicago, Ill., for plaintiff in error.

James C. McShane, of Chicago, Ill., for defendant in error.

Before BAKER and SEAMAN, Circuit Judges, and SANBORN, District Judge.

SANBORN District Judge (after stating the facts as above).

1. The declaration is sufficient, if it brings the case within the provisions of the Safety Appliance and Employers' Liability Acts above stated and otherwise states a cause of action. It pleads, in both counts, that defendant was an interstate carrier, engaged in interstate commerce at the time of the injury, and that plaintiff was employed in such commerce. In addition it is stated in the first count that the automatic coupler, owing to its improper construction and defective and inoperative condition of repair, could not be coupled from the side of the car without the necessity of switchmen going between the end of the car having such coupler and the car or cars to which it was to be coupled. Other allegations are made showing how plaintiff was injured by reason of such defects, and that said cars were shoved together, without the express allegation that this was done by defendant. It is also stated that plaintiff was then and there employed by defendant as a switchman to work and switch with a certain engine and certain cars, which it was then and there operating upon its railroad in its business. This sufficiently shows that defendant shoved the cars together, by which the injury occurred. The question was not raised until after verdict, by a motion in arrest of judgment. Under such circumstances it may be inferred, if necessary, that defendant moved the cars. Sargeant v. Baublis, 215 Ill. 430, 74 N.E. 455; American Bridge Co. v. Peden, 129 F. 1004, 64 C.C.A. 581. And the declaration is in other respects good, and brings the case within the statutes referred to.

2. The question was asked the witness whether a coupler in ordinary repair could be closed with the foot as well as the hand. It was error to receive the testimony, because calling for a conclusion and invading the province of the jury; but in view of the uncontradicted testimony as to the condition of the...