Michigan Cent. R. Co. v. Zimmerman

• Decision Date: 14 February 1928
• Docket Number: No. 4858.,4858.
• Citation: 24 F.2d 23
• Parties: MICHIGAN CENT. R. CO. v. ZIMMERMAN.
• Court: U.S. Court of Appeals — Sixth Circuit

24 F.2d 23 (1928)

MICHIGAN CENT. R. CO. v. ZIMMERMAN.

No. 4858.

Circuit Court of Appeals, Sixth Circuit.

February 14, 1928.

Robert Newbegin, of Toledo, Ohio (J. Walter Dohany, of Detroit, Mich., and Doyle & Lewis, of Toledo, Ohio, on the brief), for plaintiff in error.

Clyde L. Deeds, of Toledo, Ohio (Deeds & Cole, of Toledo, Ohio, on the brief), for defendant in error.

Before DENISON, MOORMAN, and KNAPPEN, Circuit Judges.

DENISON, Circuit Judge.

Zimmerman was a car inspector for the Pennsylvania Railroad and was employed in the Michigan Central yards. In this action, dependent on diverse citizenship, brought by his estate against the Michigan Central for damages for his death, there was a judgment against the railroad. This review raises the question whether there was any evidence to support the verdict. The record is very unsatisfactory. The location of the numerous yard tracks is important, but there is no map. The condensation into narrative form is badly done. Upon the vital matters in such a case, and upon the issue of "no testimony," we often need to have the words of the witnesses. This "narrative" has made obscure some details that probably were clear enough originally. However, after an amount of study and comparison which never should have been required of us, and giving the plaintiff the benefit of some obscurities, the vital facts become clear enough.

In the usual fashion of yards, there were many parallel east and west tracks, with a lead track at each end. In this part the parallel tracks were known as No. 1 main, No. 2 main (next north), and so on. Toward midnight a Michigan Central yard crew, which had been breaking up incoming trains and working on the west lead, had from time to time shoved in on No. 2 main a total of 17 cars, divided into four or five sections as they had separately come in; the cars of each section being coupled together, but the sections being spaced apart as it had happened. The easterly car was alone. One section midway was made up of 8 Pennsylvania cars. The 17 cars were on this track only temporarily, until the way should be clear to place them where they belonged. Promptly, as was his duty, Zimmerman inspected these 8 cars. He then reported this inspection to the yard master, saying he had found 2 cripples which he had marked for the repair track. He then inquired about further Pennsylvania cars, and was told that a string of 28 was then on a Big Four track (location not given) and would later be put on No. 1 main. He then went away. A little later the yard engine came into No. 2 from the west lead, moving east, shoved the 17 cars together, coupled them, and later pulled them out to the west and placed them, including the 2 cripples that went to the repair track. Two hours later Zimmerman's body was found between the rails of No. 2.

Plaintiff's sole theory of recovery is that Zimmerman went back to work on these cripples, that the yard crew should have known he was there, or should have ascertained that no one was, and that he was caught and crushed in the course of coupling up the 17 cars. It is alleged that there was a yard custom, when coupling up such strings into a cut, to send men ahead to warn any one who might be in danger there, and that this custom was negligently omitted. Zimmerman can escape the rule of the Aerkfetz Case, 145 U. S. 418, 12 S. Ct. 835, 36 L. Ed. 758, only by showing such a custom to warn or knowledge of his danger. There is nothing tending to show the custom.¹ The proofs relied on to show knowledge of danger we will discuss later.

The first point urged is: There is nothing to show that the injury was inflicted by any motion of these 17 cars. It is said in argument that these tracks were constantly busy, with many passing trains, and that the disaster was as likely from another train as from this. The record shows no proof that any cars moved over this track after the 17; complete proofs on the subject were naturally in defendant's possession; the circumstances fairly indicate that the killing was on this track rather than some other; in that situation the jury might infer, we think, that he was killed by some part of this coupling up and hauling out movement of the 17.

Was there notice that Zimmerman might be at work on these two cripples? He had told the yardmaster he had marked these cars for the repair track and he had then inquired about his next work. This marking for the repair track indicated there were heavy repairs, which an inspector could not make. He said they were (or one was) off center. This was a defect which he could not remedy. The only theory, or rather suggestion, of plaintiff, is that, in addition to the "off center," trouble, there may have been coupling or other slight defects which the inspector could and should remedy² to get them ready to move. This is mere surmise; and, in view of his conduct in reporting these cars as if he were through with them, and asking about others, it is distinctly improbable.

If there seemed no way in which Zimmerman could have been killed by these cars on this track, unless he was working on the cripples and was caught in the first coupling eastward movement, the uncertainty might be lessened enough to justify an inference; but it is rather more probable that the accident happened otherwise. His lantern and his hook were found — the lantern between No. 1 and No. 2, some 25 feet east of his body. They would naturally have been dropped at the first shock, and the body carried along, thus indicating that the fatal train movement was to the west. It may well have been. There was the first intermittent coupling movement to the east; then the train pulled west some 400 feet, and waited some time for a clear lead; then it pulled out, the rear car moving some 700 feet. At either of these later movements Zimmerman, going about his business may have found his way blocked by these cars, and tried to pass through. The surmise that he was killed in that way, or in some way other than according to plaintiff's theory, is at least as reasonable as that theory; and, if so killed, no liability is indicated.

There is another unusual difficulty, emphasizing plaintiff's failure to make a case. The yard train conductor and brakeman, plaintiff's witnesses, say that the eastward coupling...