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

• Citation: 73 F. 642
• Decision Date: 30 January 1896
• Docket Number: 374.
• Parties: LAKE ERIE & W. RY. CO. v. CRAIG.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

73 F. 642

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

No. 374.

United States Court of Appeals, Sixth Circuit.

January 30, 1896

This is a writ of error brought to review the judgment of the circuit court for the Northern district of Ohio in a suit brought by Frank B. Craig, defendant in error, to recover damages for personal injuries from the Lake Erie & Western Railway Company, plaintiff in error. The judgment was in favor of Craig, for $12,000. Craig was conductor or 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 the company at Lima began on the 16th of December, 1892, and the accident upon which this action is founded occurred on the 20th 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 track, 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 fire box of the engine. The contention for the plaintiff was that Craig had caught his foot in a frog which was unblocked, in violation of the statute of Ohio, 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 that Craig entered between the cars. Craig himself said that the speed was from three to four to 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. 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. The rule of the company forbade brakemen and switchmen to enter between cars in motion, to uncouple them. This rule was upon a 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. The learned judge who presided at the circuit told the jury that the single question before them was whether Craig had been injured by getting his foot in the unblocked frog; that if he went in between the cars, knowing that the frog was unblocked, he was guilty of contributory negligence, and could not recover. The court further told the jury that if Craig did not know, or might not, by reasonable care, have known, that the frog was unblocked, there was no other question of contributory negligence in the case, and that even if Craig had been negligent in going in between the cars, because of a possible danger of falling, such negligence would not prevent his recovery for an accident happening by reason of the unblocked frog, because it would not be the proximate cause of the injury.

J. B. Cockrum, W. H. Miller, and Doyle, Scott & Lewis, for plaintiff in error.

King & Tracy and Cable & Parmenter, for defendant in error.

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

TAFT Circuit Judge (after stating the facts as above).

The liability of the defendant railway company was asserted by the plaintiff on the ground that it had failed to block a railway frog in its yard at Lima, in violation of a statute of Ohio passed March 23, 1888 (85 Ohio Laws, 105), requiring all railway corporations operating railways in the state to block or fill such frogs, for the safety of their employees, and imposing a punishment for failure to do so. We have already held, in Railroad Co. v. Van Horne, 16 C.C.A. 182, 69 F. 139, that the effect of this statute is to make a failure by a railroad company to comply with it negligence, as matter of law. This is the ruling of the supreme court of Ohio in construing an analogous statute enacted to compel mine owners to adopt safety appliances for their employees. Krause v. Morgan (Ohio Sup.) 40 N.E. 886. The statute does not, however, prevent the master, in such cases, from escaping liability, if the employee injured by the master's noncompliance with the statute is himself guilty of contributory negligence. This is expressly ruled by the supreme court of Ohio in the case cited, where, after an elaborate review of the authorities in other states, Judge Speer, speaking for the court, sums up its conclusions as follows:

'While the statute, as we construe it, does not make the operator of the mine absolutely liable to a party injured by an explosion of gas, where the operator has not complied with the statute, such conduct is negligence per se; and the employer cannot escape liability by showing that he took other means to

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