Hartwick v. Chicago & A.R. Co.

• Decision Date: 29 November 1922
• Docket Number: 3091.
• Parties: HARTWICK v. CHICAGO & A.R. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

286 F. 672

HARTWICK v. CHICAGO & A.R. CO.

No. 3091.

United States Court of Appeals, Seventh Circuit.

November 29, 1922

Rehearing Denied January 23, 1923.

H. H Patterson, of Chicago, Ill., for plaintiff in error.

C. E Pope, of East St. Louis, Ill., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

EVAN A EVANS, Circuit Judge.

This writ of error is prosecuted to review the court's action in directing a verdict against plaintiff at the close of the testimony. After a careful reading of all the evidence, we are convinced that a jury question was presented on all issues of fact, save assumption of risk. The following statement of fact will therefore be made with this premise as its background:

Plaintiff, when injured, was employed by defendant company in interstate commerce, and his contributory negligence, if any, was therefore not a complete bar to his recovery. Section 3, Employers' Liability Act (Comp. St. Sec. 8659). His assumption of risk, however, if established, was a defense. Seaboard Air Line Ry. Co. v. Horton, 233 U.S. 492, 34 Sup.Ct. 635, 58 L.Ed. 1062, L.R.A. 1915C, 1, Ann.Cas. 1915B, 475; Jacobs v. Southern Ry. Co., 241 U.S. 229, 36 Sup.Ct. 588, 60 L.Ed. 970; Chesapeake & Ohio Ry. v. De Atley, 241 U.S. 310, 36 Sup.Ct. 564, 60 L.Ed. 1016.

In examining the evidence bearing on this issue, we have not attempted to weigh it, nor the inferences deducible therefrom, but to ascertain whether any evidence consistent with the conceded physical facts appears that required the court to submit this issue to the jury. There is little or no dispute in much of the story.

Plaintiff was employed on defendant's gravel train, unloading and distributing gravel along the main line at Whitehall, Ill. Some of the crew worked in the cars; others on the ground. A switching crew (consisting of conductor, engineer, fireman, and two brakemen) was at hand, and occasionally the unloading was facilitated by the engine bumping the car and loosening the gravel. As the unloading of the cars progressed, the train was moved slowly, thus permitting a more uniform and convenient distribution. As other trains passed, the gravel train was taken to a side track and returned as soon as possible.

On the day of the accident, an approaching freight train made it necessary for the switching crew to take the gravel train to a side track. Plaintiff, along with some 15 other employees, remained on one of the gravel cars and was taken to the side track and returned. As the car upon which he was riding was stopped, preparatory to its being unloaded, he fell off and suffered injuries, for which this action is brought. Plaintiff asserts his fall was due to the brakeman's failure to give warning of the impending car movement. The engineer, it seems, applied the air, and the plaintiff, unaware that the brakes were to be set, lost his balance, and fell over backwards.

The car upon which plaintiff was riding was a hopper steel car, with the gravel loaded to within 2 feet of the top. There were some 15 or 16 men on this car, each with a pick or shovel. The train was backed down to the main track, at a rate variously estimated from 4 to 10 miles per hour. The brakeman cut the gravel train, so that the empties would proceed farther north, while the loaded cars were stopped at the unloading place. The car upon which the crew was riding was the first loaded car, and the cut in the train occurred between it and the preceding empty car. When the brakeman pulled the coupling pin, he released the empty cars, and when the engineer applied the air, only the loaded cars were affected. It was the sudden slackening of the speed of the loaded cars that caused plaintiff to fall. Plaintiff's witnesses described the stop as 'a sudden, jerky stop.' One of his witnesses said:

'I would not say-- I do not mean to say-- that the stopping of the train was violent. It stopped sudden enough. It ran about 25 feet, and was going between 5 and 7 miles per hour when the brakes were applied.'

Concerning plaintiff's position on the car, the testimony is not so free from doubt. Plaintiff produced two witnesses besides himself. The first witness testified:

'Q. Where did you say Hardwick was sitting? A. At the north end of the first loaded car.

'Q. Describe to the jury just his position when you saw him. A. He was sitting on the car, with his feet inside of the car, on the inside of the car, sitting in this position on the car (indicating).

'Q. Where was his right hand? A. On the car ahead of him.

'Q. Leaning over on the car ahead of him? A. Yes, sir.

'Q. And when the cars separated, he just fell down. Is that it? A. Yes, sir.'

Plaintiff's second witness testified that plaintiff was 'against the end of the car, sitting or leaning against the end of the car. ' Plaintiff testified:

'Q. When you got up near the place where you had been unloading, in what position were you on the car? A. I was just about half leaning and half sitting.

'Q. Where were your feet? A. On the gravel.

'Q. About how far was it from the top of the hopper car down to the gravel? A. About 2 feet. My feet were about a foot from the end of the car. In my

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