Grand Trunk Western Ry. Co. v. Reid

• Decision Date: 28 June 1930
• Docket Number: No. 5332.,5332.
• Citation: 42 F.2d 403
• Parties: GRAND TRUNK WESTERN RY. CO. v. REID.
• Court: U.S. Court of Appeals — Sixth Circuit

42 F.2d 403 (1930)

GRAND TRUNK WESTERN RY. CO. v. REID.

No. 5332.

Circuit Court of Appeals, Sixth Circuit.

June 28, 1930.

L. J. Carrigan, of Detroit, Mich. (Frederic T. Harward and George H. Kretzschmar, both of Detroit, Mich., on the brief), for appellant.

T. J. Bresnahan, of Detroit, Mich. (Elmer H. Groefsema, of Detroit, Mich., on the brief), for appellee.

Before DENISON and HICKS, Circuit Judges, and RAYMOND, District Judge.

HICKS, Circuit Judge.

Action under the Federal Employers' Liability Act (title 45, U. S. Code, c. 2, §§ 51-59 45 USCA §§ 51-59) by Elizabeth Reid, administratrix of the estate of James A. Reid, against Grand Trunk Western Railway Company, to recover damages for his death. Judgment for plaintiff, and the defendant appealed.

Appellant owns and operates a double-track railroad running approximately east and west through Lapeer, Mich. Court street crosses these tracks in an approximately north and south direction. The crossing is of plank with a board sidewalk on either side. The passenger station is on the north side of the west-bound track and somewhat more than 400 feet east of Court street. The freighthouse is slightly northwest of the passenger station. West of the crossing the house track branches from the west-bound main, and, gradually diverging therefrom, runs over the crossing and to the freighthouse. The frog of the switch is 48 feet west of the center of the crossing and the point about 50 feet farther west. The plank crossing has an average width of 35 1/5 feet. Deceased, 36 years old, an experienced brakeman, was a member of a train crew consisting of Conductor Franklin, Engineer Shattuck, Fireman French, and Brakemen Reynolds, Carey, and himself. They operated a local freight train, and on November 4, 1925, the date of Reid's death, they were bound east. At Lapeer it was their custom to do the switching necessary to place loaded cars to be picked up by through freights. In these operations deceased "followed the engine," that is, it was his duty to couple and cut off cars and give signals. On the above date a flat car loaded with machinery and two refrigerator cars loaded with potatoes stood upon the house track by the freighthouse. At noon the crew, then consisting of the engineer, fireman, and Brakemen Reid and Carey, pushed three loaded gondola coal cars from the west main in upon the house track, coupled them to the flat or machinery car and refrigerator cars and pulled the cut of cars so constituted out of the house track and on to the west main. After these cars cleared the switch they were shoved east along the west main until the west end of the west refrigerator car was on the crossing. There deceased cut off the refrigerator cars. The west main was down grade toward the station, and there is evidence tending to show that the refrigerator cars, after being cut off, rolled until stopped by the brakes put on by Carey from the top of one of the refrigerator cars. They rolled a short distance only because when they stopped the west end of the west refrigerator car, accepting appellee's evidence as true, was approximately, if not quite, at the center of the crossing. At a signal from deceased, who was on the engineer's side, the train then backed up until it was west of the switch. Deceased crossed the track to the switch stand, turned the switch, returned to the south side, signaled the engineer forward, and climbed upon the flat car at its southeast corner. The record fails to disclose clearly whether he rode on top or stood in the stirrup at the side of the car, but from subsequent developments we infer that he stood on top and rode facing east as he would naturally do in the discharge of his duty as a lookout until the flat car reached the freighthouse, where he cut it off and left it. He then signaled the engineer to back up, walked the length of the first coal car, climbed to the stirrup on the east end and south side of the second coal car, and, standing with his body at an angle of about 45 degrees, rode in this position, looking east, until the back of his head struck the northwest corner of the west refrigerator car, when he was knocked off and under the coal cars and killed.

We consider only the assignments of error discussed in appellant's brief.

We think deceased was killed while engaged in interstate commerce. The refrigerator or potato cars were destined for points beyond the state. Their movement was halted for a few minutes only upon the west-bound main until the flat car could be returned to the freighthouse. This having been done, the train on which deceased was riding when...