Mexican Cent. Ry. Co. v. Townsend

• Decision Date: 22 April 1902
• Docket Number: 1,117.
• Citation: 114 F. 737
• Parties: MEXICAN CENT. RY. CO. Limited, v. TOWNSEND.
• Court: U.S. Court of Appeals — Fifth Circuit

114 F. 737

MEXICAN CENT. RY. CO. Limited, v. TOWNSEND.

No. 1,117.

United States Court of Appeals, Fifth Circuit.

April 22, 1902

Where in an action by a brakeman to recover for injuries resulting from a fall from the top of a car, caused by the breaking of a running board, the evidence was conflicting as to whether the board was rotten or sound, and it appeared that the brace which supported the end of the board was loose, and hanging down, after the accident, but the evidence did not conclusively show that it was in that condition when the car was last inspected, or when it should have been inspected, it was error to direct a verdict for plaintiff, as the question of defendant's negligence should have been left to the jury.

The plaintiff (defendant in error here) was employed as a brakeman by the defendant (plaintiff in error). On the 9th or 10th of February, 1901, while so engaged in the service of the defendant company, the plaintiff, in the performance of his duties, was required to be on top of the defendant's train, and to go from one car to another. The running board on one of the cars on which the plaintiff was walking suddenly broke and gave way, and the plaintiff was thrown from the top of the car to the ground, and as he fell his left hand, arm, and wrist were caught under the wheels of the cars, and so mangled and bruised that it became necessary to amputate his hand about the wrist. D. S. McCurdy, a witness for the plaintiff, describes the condition of the car as he found it immediately after the accident: 'We found the running board on one of the cars with about five of six feet broken off. Only one of the planks was broken. We examined this plank, and found it was dry rot and cross-grain board. We also found that the brace was not attached to the end of the car and the end of the running board, but was hanging downward, and pushed to one side towards the right. The running board is composed of three pieces of plank nailed on the top of the car, and projects over the ends of the car. All of these pieces of plank compose the running board, and extend over the end of the car about eight inches. These boards are nailed on top of the car, and have a brace underneath the ends of the running board, which is fastened with a bracket to the side of the car and the projecting ends of the running board. When we examined this brace, we found it hanging downward to the right. This brace was detached from the end of the car and the end of the running board. We examined the end of the running board that was broken. It was broken or split off with the grain of the board for about six inches. I also examined the running board to see whether it was nailed or not. I only examined at the rear end. This end was nailed. The rear end was nailed. That would be about the center of the car. We also examined the drawheads between these two cars, and found the drawheads all right. * * * The car was No. 1,423. * * * The running board was broken off and, was dry rot, wind-shaken, or dry rot cross-grain. I mean by 'wind-shaken' the same as dry rot. I cannot explain dry rot except that it is dry rot. This was a dry-rot board and also cross-grain. The grain went across the board instead of straight. The plank did not have a hole rotted through it, but was just wind-shaken all through. It was dry rot all of the way through. You can see by looking at the end of the board. I found a dry rot through the end of the board that was left. The bracket was hanging down about six-inches and pushed to the right, and was loose on one end. The bracket was not on top of the car, but was on the end. It was loose from the end where the brace had come loose. There was nothing the matter with it except it was loose. I cannot tell exactly how many minutes it was after the accident until we examined this car. It was just as quick as we could get plaintiff into the caboose, and I could notify the engineer and fireman, when we made this examination. ' The condition of the car after the accident as described by this witness is confirmed by the evidence of Herman Baker and the plaintiff. Baker said: 'I made a very careful examination of this piece of plank, because I wanted to see what caused it to break. The piece that was broken off was between four and six feet long, and at the place where it was broken it was somewhat decayed and rotten, and also seemed to be very old, and the end was freshly broken. I also looked at the top of the car, and saw where this piece of plank had been broken off. I think the running board was made of two or three boards laid together, but only one of the boards on the outside was broken. I think the car on which this board was broken was C.M. No. 1,423. ' Plaintiff, testifying himself, described the particulars of the accident and the condition of the car as he found it after the accident, and also testified to facts tending to show his suffering, the extent of his injuries, and the extent of his damages. C. E Meyer, a witness for the defendant, testified as follows: 'My business is car inspector for the Mexican Central at Torreon. I am acquainted with car No. 1,423, Mexican Central. It is a beer car. I do not know anything about when the car was overhauled. There is that board (pointing to the board on floor) that has been on it. I had something to do with the taking of that board from the car. That board came off of the left side of the car. There was no mere of the board of the left-hand side of the running board than that. There are two lengths of boarding on the car. There are three boards on the car of that size. This is the one on the outside. That is the full length of it. I sawed that board in two. Complete, it would measure sixteen feet. The board is about eight foot six inches long. There is about seven feet six inches gone. I got that board about a month or five weeks ago. The car was at Torreon at that time, in cold storage, to be overhauled. (Witness examined board.) This board is not rotten. This is where it was turned up, so as to be exposed to the weather (indicating). This is the bottom. That is put on cleats. This part (indicating upper part) is turned towards the sun. There were three boards there when I took this off. The cleats of this board are just about two feet apart. Cleats are the pieces where the nails go. They were still there, and in good condition. Three boards still remained on the car. A board is five inches wide. Five inches width of board was still there when I took this off. ' Cross-examination: 'I saw this car No. 1,423, just as I said, five or sax weeks ago. It was about the 24th of July when I took that board off, I didn't see the car from the time of the accident until I took this board off, and didn't pay any attention to it. I took this board off at Torreon. It was taken back there. I believe that the company permitted this broken running board to be on the car from the 10th day of February until the 24th day of July, 1901. If Mr. McCurdy, the conductor, and Mr. Townsend, the brakeman, say that there were three running boards on there, they are mistaken. I do not claim to know this was the car Townsend was hurt on. I do know whether I took that board from the car...