Hodges v. Kimball

• Decision Date: 08 November 1900
• Docket Number: 364.
• Citation: 104 F. 745
• Parties: HODGES et al. v. KIMBALL et al.
• Court: U.S. Court of Appeals — Fourth Circuit

104 F. 745

HODGES et al. v. KIMBALL et al.

No. 364.

United States Court of Appeals, Fourth Circuit.

November 8, 1900

Robert Burrow (Isaac Harr and Burrow Bros., on the brief), for plaintiffs in error.

R. M Page (Jos. I. Doran, Fulkerson, Page & Hunt, on the brief) for defendants in error.

Before GOFF and SIMONTON, Circuit Judges, and PURNELL, District Judge.

PURNELL District Judge.

Plaintiff's intestate lost his life on March 30, 1895, in the nighttime. The accident occurred on the Maritime spur track of the Thacker coal mines, near Thacker station, at a point where coal is loaded into cars of the Norfolk & Western Railroad by dumping the coal from tipples. This method of loading coal is necessarily a dirty, grimy operation, and the air at such points in the coal region is filled with coat dust, which settles over all objects. A locomotive with one coal car attached was being backed up the spur track to be coupled to eighteen cars loaded with coal, standing on the track coupled together. The conductor directed Lusk, the decedent, a brakeman who had been in the service of the defendants for some months, to let off the brakes on the rear end of the cut of cars standing on the track, informing him that Brakeman Hazelett would make the coupling between the car attached to the engine and the standing cars. Notwithstanding this direction, Lusk gave the signal to slack back, and undertook to couple the cars, he being on the fireman's side of the train. In his attempt to make the coupling it is probable that his head was caught between a nut on the end of a truss rod on the end of one car and the bumper on the other car, and he received injuries--the right temple being crushed in-- from which he died in a short time. There was a curve at the point where the coupling was attempted to be made, Lusk going between the cars from the outside of the curve. A bumper was missing from the end of one of the cars between which he entered. The bumper was missing from the side of the car on the inside of the curve, the side opposite that upon which he entered. The car in question had been inspected at Valleycrossing, a station of defendant's in Ohio, on the 26th day of February, 1895, and was found to need some draft-timber bolts, and held for those repairs, which were duly made. It was at the same time carded because of a cracked wrought drawbar, one split side sill at end, and one cracked end sill. The defects for which it was carded were not such as to cause it to be put out of service; but, Valleycrossing being a point for the interchange of cars with other roads, the carding of the defects was to protect the receiving company in the event that the parts that were cracked gave out; in other words, to show the actual physical condition of the cars when delivered. The drawbar bolts were repaired, and the N. & W. car No. 5,347 left Valleycrossing March 11, 1895. The car passed through Kenova, a divisional point of defendant's road on March 12, 1895. The whereabouts of the car was not shown from that date until the date of the accident. The defendants provided for a regular system of inspections at divisional points, and inspections by conductors and brakemen when trains stopped for water or for other trains. It does not appear when or from what cause the bumper became missing. It was in evidence that the bumpers of the two fars that were being coupled were not similarly spaced on the cars, and thus did not meet each other evenly; and a witness testified that he was present when a test was being made by bringing the same two cars together at the point of the accident 10 days thereafter, and that the bumpers passed each other. A rule of the defendant's required the use of coupling sticks by brakemen. Such stick was issued to decedent. There was also testimony that the proper position in making the coupling was for the brakemen to stoop so as to bring his head below the end sills of the cars. The N. & W. car No. 5,347 was a coal gondola. The weather at the time was snowy and rainy. The bumper, or deadwood, was of cast iron,

Four charges of negligence are made, as follows: In providing a car with an impaired, rotten, and defective deadwood or bumper; in failing to provide sufficient deadwood or bumpers on one side of one of the cars; in that the end sills of the car to which said bumpers had been attached were old, rotten, split, and otherwise defective, by reason whereof the bumpers and handholds which had been thereto attached had fallen off and become so loose as to be unfit for the purposes for which they were made; and in that the dead blocks or bumpers on said cars were so inappropriately placed as they would not meet and strike each other in such a way as to prevent the cars from going together. After all the testimony had been heard, upon motion of defendant's counsel the trial judge held plaintiff was not entitled to recover, and instructed the jury to find for defendant. Plaintiff excepted to the ruling of the court. A verdict was returned in accordance with the instruction of the court, and judgment rendered thereon. This is the only exception in the record, for which plaintiff assigns nine reasons for error. The first is that there was sufficient evidence to warrant a verdict for plaintiff; second, because the evidence did not warrant the trial judge in reaching the conclusion that defendant had exempted itself from liability by sufficient and proper inspections of the defective car which caused the injury to plaintiff's intestate; third, because the conclusion of the trial judge that there had been sufficient and proper inspections of the defective car ignored the theory of plaintiff that the inspections of the car were carelessly and negligently performed by defendant; fourth, because the action of the trial judge ignores the theory of the plaintiff that the defects in the car which caused the death of plaintiff's intestate are shown to have existed for such length of time prior to the accident as that defendant is chargeable with knowledge of the same; fifth, because the conclusion of the trial judge that the inspections of the defective car causing the accident were sufficient in number, time, and character was based solely on the evidence of one witness, and ignores other and more reliable testimony to the contrary; sixth, because the conclusion of the trial judge that an inspection on March 12, before the killing on March 30th, was all that could be reasonably required of defendant, ignored a rule of defendant which required conductors to 'see that the couplings and brakes of the cars of their trains are in good order before starting,' and the duty of inspecting the defective car at Thacker before being coupled to the balance of the train was on the conductor, and, if inspection had been made, the defect would have been discovered in time to prevent the killing of plaintiff's intestate; seventh, because the question of sufficiency and frequency of inspections of the defective car should have been submitted to the jury; eighth, because there was material evidence which tended to establish the negligence alleged in each count of plaintiff's declaration and amended declaration, and it was, therefore, error to withdraw the consideration of the case from the jury; and, ninth, because it was error to hold that it was not negligence in a railroad company to have cars of its own with bumpers or dead blocks of unequal height, or so placed that they would pass, instead of meeting and striking each other.

The argument was almost exclusively of the facts, and it is a source of regret that plaintiff's counsel have not favored this court with a statement from their standpoint. A clear statement of facts by both parties assists the court in arriving at a fair summary. When all agree on a fact, it may be taken as settled, and those disputed may be more satisfactorily determined. This is of greater importance to parties and counsel who, in a case like the one at bar, seek a review of the testimony and a new trial because of a decision of the trial judge that a proper case has not been made to entitle the plaintiff to a verdict. Appellate courts will not look into voluminous records, and sift from the chaff of testimony the kernels of evidence, to find possible theories upon which a jury might have returned a verdict. There is a constant effort in actions for damages, especially against corporations, to have questions of law, science, and art, questions which it requires years of training and experience to properly solve, submitted to juries, many members of which have not had the opportunity to even consider. When against railroads, questions of civil and mechanical engineering, tests of machinery, effect of steam and complicated appliances of which many jurors, called into the jury box probably for the first time, in many cases from a rural district where the hum of machinery and the music of the looms are never heard, are as uninformed as was the old lady who, upon hearing the pumping of the air brake for the first time, in the goodness of her heart, imagined and remarked that the poor engine was 'so tired.'

Trial by jury of questions of fact is the best method that has been conceived or suggested. It is the glory and boast of our system of jurisprudence. But the questions submitted to a jury should be questions of fact such as the jury can understand. The courts are constantly drawing the distinction and laying down the rule of demarkation. If every question raised is to be submitted to the jury, as frequently contended and occasionally decided, the trial judges becomes a useless appendage, and the idea of selecting these officers from a profession learned in law, experienced in solving controversies, who have devoted the best years...