Lake Erie & W.R. Co. v. Craig

• Decision Date: 04 May 1897
• Docket Number: 467.
• Citation: 80 F. 488
• Parties: LAKE ERIE & W.R. CO. v. CRAIG.
• Court: U.S. Court of Appeals — Sixth Circuit

80 F. 488

LAKE ERIE & W.R. CO. v. CRAIG.

No. 467.

United States Court of Appeals, Sixth Circuit.

May 4, 1897

J. B Cockrum and W. H. Miller, for plaintiff in error.

D. J Cable and W. L. Parmenter, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

CLARK District Judge.

This case was before this court at a former term on writ of error to the circuit court of the United States for the Western division of the Northern district of Ohio, brought to review a judgment in favor of defendant in error for $12,000. The judgment was reversed, and a new trial ordered. The case was again brought to trial in the court below, and resulted in a judgment in favor of defendant in error, Craig, for $11,000 to review which the present writ of error is prosecuted. In the opinion of the former hearing, the facts were stated by Judge Taft as follows:

'Craig was the conductor of foreman of a night switching crew in the yards of the railway company at Lima, Ohio. He had been in the employ of the company for nearly three years prior to the accident in various capacities, chiefly as brakeman upon a freight train. His service as conductor or foreman of the switching crew in the yards of Lima began on the 16th day of December, 1892, and the accident upon which this action is founded occurred on the 23d of the same month. The switching crew, which consisted of Craig himself, two switchmen, the engineer and the fireman of the locomotive, had completed their work about 4 o'clock in the morning, had washed themselves, and were waiting until 6 o'clock should arrive, when their duties would end. They received an order to switch two cars, one to one train and one to another, which, coming at this late hour, put them in bad humor. The two cars to be switched were attached to the front end of the engine, and the engine was backed north on the main track in the Lima yard, to what was called the 'switch,' into the B track. There was a slight grade from the center of the yard down to the switch. The grade from the switch north on the main track was also downward, though upon this point there was a conflict of evidence. As the train backed down on the main track beyond the switch, Craig stepped off on the east side of the main tract about opposite the switch point, and waited until the train had passed beyond the switch. One of his switchmen turned the switch, and then Craig gave the swift signal to kick the car hard up the B switch. The engineer obeyed the signal, and pushed the cars up the B switch. Craig stepped in between the first and second cars as they went by him to pull out the coupling pin. He succeeded in doing this, but fell and was run over. His legs were so mangled that both had to be amputated. He was found lying under the firebox of the engine. The contention for the plaintiff in error was that Craig had caught his foot in a frog which was unblocked in violation of the statute of Ohio of March 23, 1888 (85 Ohio Laws, 105), and that this was the cause of the accident. The evidence was very conflicting as to whether the frog was blocked or not. There was some conflict of evidence also as to the speed of the train at the time when Craig entered between the cars. Craig himself said that the speed was from three to four or five miles an hour; other witnesses said that the speed was from four to five miles an hour. The engineer testified that Craig had given him a swift signal,-- that is, a signal for a hard kick,-- and that the speed was about ten miles an hour. His fireman, however, thought that it was about five miles an hour. The night was cold and the ground was frozen. The roadbed about the switch was usually moist when not frozen. There was some snow on the ground. It was quite dark. A rule of the company forbade brakemen and switchmen to enter between cars in motion to uncouple them. This rule was upon the time card furnished by the company to Craig. It was in evidence that the rule was generally not observed in the Lima yard, and that the violations of the rule were known to the division superintendent and the yard master. The division superintendent admitted upon the stand that the rule was not always observed, but stated that he had cautioned the men against entering between the cars when they were moving too rapidly, and advised them against their taking such risks. It was also in evidence that it was the general custom on railroads to uncouple cars in this way.' 37 U.S.App. 656, 657, 19 C.C.A. 631, and 73 F. 642.

The facts disclosed in the record of the case as now brought up are substantially the same, with one important exception now to be stated. On the trial which resulted in the judgment now under review, the circuit court, on objection by plaintiff in error, excluded all evidence showing, or tending to show, that the rule which forbade brakemen and switchmen to go between the cars in motion to uncouple them was habitually disregarded with the knowledge of the division superintendent of the railroad company and the yard master. The rule in question is No. 112, on time card 29, and is as follows:

'112. Every employe is required by these rules and regulations to exercise the utmost caution to avoid injury to himself or to his fellows, especially in the switching or other movement of trains; jumping on or off of trains or engines in motion, entering between the cars while in motion to uncouple them, and all similar imprudences are forbidden.'

The circuit judge, in sustaining the objection to evidence of a custom to disregard the rule, gave as a reason for doing so that such evidence did not show that the acts of uncoupling known to defendant's officers were the same or similar to the manner of uncoupling done by the defendant in error at the time of the accident. The circuit judge said that it would certainly not be sufficient to show that the servants of the company were allowed to uncouple cars at a rate of speed not exceeding one or two miles an hour in daytime with the ground dry and the surroundings favorable. Such facts, it was said, would neither justify the court nor the jury in finding that there was an intention not to require the rule to be observed in the nighttime, when the ground was frozen, covered with snow, and where frogs and switches were located, and the danger, in view of these circumstances, much greater. This ruling was made during the examination of defendant in error, Craig, himself, and we may give so much of his examination as related to this point at the time the objection was sustained. It is as follows:

'Q. You may state if Mr. Bell, prior to the time you were injured, was about the yards to your knowledge, at any time while the men were engaged in switching cars and cutting off cars and in coupling cars. A. Well, I don't know as I ever seen him around there after night, but I saw him there in the daytime. Q. Was he there at any time while the men were so engaged? A. Yes, sir. Q. Did Mr. Bell see the manner in which the cars were cut off and switched? (Objected to as not having anything to do with the case at this time.) The Court: I will let him answer this question, and see what the next question will be. This particular question is: 'Did Mr. Bell see the manner in which the cars were cut off and switched?' I think he may answer that question. Mr. Cockrum: That is, these particular cars? The Court: Yes; if that question refers to Mr. Bell seeing the manner in which cars were cut off at other times, I will sustain the objection. Mr. Cable: Q. Do you know how cars were cut off and switched in the yards of the Lake Erie & Western Railroad Company at Lima, Ohio, prior to the time you were injured, with reference to the manner in which the work was done,-- that is, on December 23, 1892, and prior? (Objected to. Objection sustained, to which ruling the plaintiff then and there excepted.)'

The witness was subsequently asked to state whether there was any difference in the manner in which the cars were cut off and switching done in the nighttime and daytime, and objection to the question was sustained. The witness was then asked if he knew the manner in which the switching was done in the yard in the daytime, to which the witness answered that he did. In regard to what there followed we will allow the record to speak for itself:

Q. Now state the manner in which the cutting off of cars and switching was done in the yard in the daytime, at and prior to the time you were injured, (Objected to.) The Court: If you will incorporate right in there, and meet the issues fairly and squarely, as to whether or not brakemen and switchmen went in there when the cars were in motion, it will present the matter more directly to the court. I will sustain the objection to this question as it stands. I think you should sustain the objection to this question as to the particular custom. Mr. Cable: I will ask you to state what was the manner in which cars were cut off and switched in the Lima yards of the Lake Erie & Western Railroad Company at and prior to the time you were injured, with reference to brakemen or switchmen going between the cars while they were in motion, to pull the pin, while they were moving at a rate of speed of an ordinary walk, or three or four miles an hour. (Objected to.) Mr. Cable: We offer and expect to prove by the testimony of this witness that the manner of doing switching and cutting off of cars in the Lima yards of the defendant company at and prior to Craig's injury was by uncoupling the cars in motion, going at a rate of speed of from two to three, four, and five miles per hour, the men going between the cars while so in motion to pull the coupling pin; that the manner of doing the work of switching and cutting or uncoupling cars in the Lima yards of ...