Kenney v. Meddaugh

• Decision Date: 15 August 1902
• Docket Number: 1,022.
• Citation: 118 F. 209
• Parties: KENNEY v. MEDDAUGH et al.
• Court: U.S. Court of Appeals — Sixth Circuit

118 F. 209

KENNEY v. MEDDAUGH et al.

No. 1,022.

United States Court of Appeals, Sixth Circuit.

August 15, 1902

A locomotive fireman will be held to have assumed the risk from proximity to the track of a mail crane; he having been a fireman on the road for a year, during which there was no increase in the size of the engines, and having passed this place 83 times, and been over the other division 123 times and the crane having been in position all that time, and at substantially the same distance from the track as the other cranes on both divisions; and this though it was dark, and blowing hard and snowing, these circumstances merely requiring extra caution on his part.

This is an action to recover damages for the alleged wrongful death of Cornelius J. O'Brien. The lower court at the close of all the evidence, upon motion of defendants, directed a verdict for them. The judgment rendered thereon is complained of herein. The accident which resulted in O'Brien's death happened after dark on the evening of February 1, 1900 at Climax, a station on the Western division of defendants' railroad, extending from Battle Creek, Mich to Chicago, Ill. It is the second station west of Battle Creek, and a short distance therefrom. At that time, decedent was fireman on defendants' fast passenger train from Battle Creek to Chicago, due to leave the former place at 3:40 p.m., but which in fact left at 5:57 p.m., being 2 hours and 17 minutes late, and reached Climax at 6:15 p.m. The depot at that station is on the south side of the track, or left-hand side as you go west. On the same side, and about 475 feet east of the depot, a mail crane was stationed, to hold mail pouches to be taken aboard of fast passenger trains not stopping there, by means of mail catchers attached to the mail cars. As decedent's train passed this mail crane that evening, he was struck in the forehead by the upper arm thereof, and rendered unconscious, and shortly thereafter he died. No one saw the collision, and it is only a matter of inference from circumstances that his death was due to this cause. But there can be no doubt as to this, and defendants in error do not contend that it was not. In addition to its being dark, there was testimony to the effect that it was snowing, though not to any great extent, and blowing hard. In front of the depot building, and about 11 or 12 feet from the track, was a signal board which indicated to each train as it passed the number of the train just ahead of it, and the time it passed the station, and above it a signal light,-- red if there was danger, and white if the way was clear. East of the mail crane, about the same distance that it was east of the depot, there were signal lights at two switches, probably on the north side of the track, or right-hand side as you go west. There was a rule of the company which required firemen on locomotives to be on the lookout for and to receive all the signals which might be given or located on the left side of the locomotive, and to transmit them promptly and correctly to the engineer. It was claimed by defendants that it was not necessary for a fireman to look out of the window on the side of the cab in order to comply with this rule; that he could see the entire width of the right of way, and beyond it, by looking out of the window in front; by plaintiff, that this could not be done when the vision through the window was obstructed by accumulated snow; by defendants, that in such event the fireman could open and clean the window, and thus remove the obstruction to his sight; and by plaintiff, that this could not be done when the snow was continuous. There was, however, no evidence that vision from the window in front was obstructed by snow at the time of the accident. It was purely a matter of speculation as to whether it was. But there was evidence that it was more or less customary for firemen on defendants' railroad to look out of the side window, in watching for signals. It was proven, though, that in order for him to do so it was not necessary that he should put his head out more than four to six inches.

Decedent had been in the employ of defendants as a fireman for not quite a year before the accident. In that time he had worked upon both divisions of defendants' road,-- the most of the time, however, on the Eastern division, from Battle Creek to Port Huron. He had made, in all, 206 runs. Of these, 123 were on the Eastern division, and 83 on the Western. He had worked on both freight and passenger trains. He had made 9 runs on passenger trains on the Eastern division, and 6 on the Western. During that time there were in use on defendants' railroad 16 large Baldwin engines,-- 8 on freight trains and 8 on passenger,-- and others of a smaller type. There was no difference between those used on freight trains and those on passenger, save in this: that the cabs of the latter were 6 inches higher than the former. Of the nine runs which decedent had made on passenger trains on the Eastern division, eight were on the larger engines, and one on the smaller. Of the six runs which he had made on the Western division, four were on the larger engines, and two on the smaller. Of the runs on freight trains, about twice as many were made on the larger engines as the smaller, and in the six months preceding the accident they were almost entirely on the larger engines. The firemen, as well on passenger as on freight engines, had nothing to do in connection with the mail cranes along the road, and the opportunity of observing them and their proximity to the railroad track was as good on freight engines as on passenger. They were often up in position when freight trains passed or were on sidings waiting for passenger trains to pass. The distance between the outer end of the upper arm of the mail crane in question when in position and the outer edge of the nearest rail was 3 feet 6 1/4 inches, according to the testimony of defendants' employe who had charge of its mail cranes, and who measured the distance about the time of the accident. According to the testimony of a carpenter who had no connection with the railroad, introduced as a witness by plaintiff, the distance, at some time within the year after the accident, not more definitely located, was 3 feet 5 1/2 inches. There were a number of mail cranes along the line of defendants' railroad. On the Eastern division there were about 19; on the Western division, between Battle Creek and Elsdon, a distance of 168 miles, there were 7 or 8,. According to the standard prescribed by defendants for thus use of those who construct them, the distance of mail cranes, measuring as above, should be 3 feet 6 inches. As to the bulk of those on defendants' road, the distance was 3 feet 6 inches, and above. As to one, it was as high as 3 feet, 7 3/4 inches. As to two of them, it was under 3 feet 6 inches; the lowest being 3 feet 5 1/2 inches. The distance on the Michigan Central Railroad run from 3 feet 5 1/2 inches to 3 feet 7 inches. The distance between the side of the cab on the engine in which the decedent was acting as fireman at the time of the accident, and the outer end of the upper arm when in position, was 1 foot 1 1/2 inches, or 13 1/2 inches, with the other distance at 3 feet 5 1/2 inches. Said arm in position came a little above the center of the side window in the cab. According to the testimony of defendants' master car builder, who was familiar with the government regulations, and under whose supervision mail catchers were attached to the mail cars, the mail cranes on defendants' road could not be placed further away from the track and be used with the catcher. No one testified that they could be, and there was no fact proven from which an inference could be drawn that they could be. The carpenter, before referred to, who had seen the mail crane at Climax work, and examined it, was asked by plaintiff's attorney whether the mail crane could be put further away from the track, and still do the work of taking the mail as the trains went by; but, upon objection of defendants, the court refused to permit him to answer the question. This is the case upon which the lower court sustained defendants' motion to instruct the jury to find for defendants.

George Weadock, for plaintiff in error.

Harrison Geer, for defendants in error.

Before SEVERENS, Circuit Judge, and WANTY and COCHRAN, District Judges.

COCHRAN District Judge, after stating the facts as above, .

It is urged as ground of reversal of the judgment of the lower court that it erred in giving the peremptory instruction. The grounds upon which it was requested by defendants were three That, as a matter of law, defendants had not been guilty of negligence; that, likewise, decedent had assumed the risk of the proximity of the mail crane to the track; and that, likewise, if defendants had been guilty of negligence, decedent had been guilty of contributory negligence. The lower court, in giving that instruction, gave no intimation, so far as the record shows, as to the ground of its action. There was room for it to have been based on the last ground urged by the defendants. The distance from the side of the cab to the outer end of the upper arm of the mail crane, when in position to deliver the mail, the distance out of the cab window which a fireman would have to project his head to see signals, and decedent's knowledge of the existence of the mail crane at that station, and its proximity to the track, when in such position, here assumed, hereafter shown, tend to establish negligence on decedent's part, even though it may have been proper for him to look out of the window for that purpose at all. But it is unnecessary to decide whether this position was well taken or not, for we are clear that ...