Midland Valley R. Co. v. Fulgham

• Decision Date: 26 July 1910
• Docket Number: 3,168,3,284.
• Citation: 181 F. 91
• Parties: MIDLAND VALLEY R. CO. v. FULGHAM. FULGHAM v. MIDLAND VALLEY R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

181 F. 91

MIDLAND VALLEY R. CO. v. FULGHAM.

FULGHAM v. MIDLAND VALLEY R. CO.

Nos. 3,168, 3,284.

United States Court of Appeals, Eighth Circuit.

July 26, 1910

Syllabus by the Court.

The happening of an accident which causes an injury to a servant raises no presumption of any negligence or wrongful act of his master. The doctrine of res ipsa loquitur is inapplicable to actions between employer and employe for injuries by negligence or wrongful act.

Conjecture is an unsound and unjust basis for a verdict. Substantial evidence of the facts which constitute the cause of action in this case of the alleged defect in the lift pin lever and automatic coupler, is indispensable to the maintenance of a verdict sustaining the cause.

A conductor was walking along the side of his train taking the numbers of the cars while his crew was making up the train. Starting at the rear of the train there were, first, three cars; second, a space of 18 or 20 feet; third, three more cars; fourth, a space of several feet, and, fifth, a long string of freight cars with the engine at their head. When the conductor reached the rear of the forward three cars, he gave the lift pin lever a jerk, and then reached in to put his hand on, or actually took hold of, the coupler, when the forward end of the train struck the forward end of the three cars in the act of coupling to them, knocked him down and ran over him. The car to which the coupler was attached had been inspected shortly before the accident, and the inspectors had found no defect. Several witnesses examined and operated the coupler and the lift pin lever immediately after the accident and found them in good condition and operating perfectly.

Held in this state of the facts, the verdict of the jury that the coupler was so defective at the time of the accident that 'it would not couple automatically by impact without the necessity of men going in between the cars ' was based on conjecture, and it cannot be sustained.

Cross-errors are not assignable in the federal courts. Parties who have secured all the relief they seek cannot appeal or sue out a writ of error, nor can they by assigning or arguing cross-errors confer jurisdiction on a national appellate court to consider or determine alleged erroneous rulings not otherwise presented. Guarantee Co. of North America v Phenix Ins. Co., 59 C.C.A. 376, 379, 124 F. 170, 173.

Ira D. Oglesby (Edgar A. de Meules, on the brief), for Midland Valley R. co.

Oscar L. Miles, for Fulgham.

Before SANBORN, HOOK, and ADAMS, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff below, the administrator of the estate of E. C. Pogue, brought an action against the Midland Valley Railroad Company for negligence which he alleged caused the death of Mr. Pogue, a former employe of the railroad company and the conductor of a train which his crew was making up at a station at the time of the accident in which he died. When that accident happened, Mr. Pogue was walking along the side of the train with his book in his hand taking the numbers of the cars. Commencing at the rear there were upon this track, first, two or three cars; second, a space of 18 or 20 feet; third, a bunch of three cars; fourth, a space of several feet; and, fifth, a long train of freight cars with an engine at the head which the engineer and brakemen were about to couple to the three cars nearest to that part of the train. As, pursuant to signals from the brakeman, the engineer backed this part of the train to make the coupling, Pogue took hold of the lift pin lever at the rear of the forward three cars and gave it a jerk.

It made such a click as it commonly makes when it opens the coupler and as it sometimes makes when it cocks, but fails to open it. Pogue released the lever, reached his hand in, and placed it near or upon the coupler, and at that instant the forward part of the train struck the three cars, knocked him down, and ran over him. In his complaint the plaintiff charged two acts of negligence: (1) That the lift pin lever of the coupler would not open the automatic coupler, and therefore the latter would not couple automatically by impact without the necessity of an employe going between the cars to effect the coupling; and (2) that the engineer sent the cars back too rapidly and forcibly. The jury found that the engineer was not guilty of any negligence, but that the coupler was so defective that it would not couple automatically by impact without the necessity of men going in between the cars, and they returned a verdict against the company.

It is assigned as error that the court denied a request of the defendant that it charge the jury that the evidence was not sufficient to sustain the plaintiff's allegation with respect to the alleged defect in the coupler and that they should find for the defendant upon that issue. This specification presents the issue whether or not, when all the testimony and the natural and rational inferences from it are carefully considered, there was any substantial evidence that this coupler was defective. Upon this issue the testimony was that Pogue first took hold of the lift pin lever and jerked it, and then stepped in between the cars, and either placed his hand upon the coupler or was about to do so when he was knocked down; that couplers sometimes get rusty and it requires two or three jerks of the levers to open them; and that sometimes a jerk of the lever will cock the knuckle, but will not open the coupler, and then it is necessary for an employe to go between the cars and open it. Immediately after the accident and on the same day, the lever and coupler were examined and operated by several witnesses who testified that they were without defects and operated perfectly. No witness came to say that either the lever or the coupler was defective or inoperative in any way at the time of, or before or after, the accident. Nevertheless counsel for the plaintiff insist that it was a permissible inference that they were thus defective which the jury might lawfully deduce from the fact that after jerking the lever Pogue stepped in between the cars and put, or sought to put, his hand upon the coupler. But this inference rests upon two conjectures, the conjecture that the reason for attempting to put his hand on the coupler was that it was closed and he desired to open it and the further conjecture that he was unable to open it by the use of the lever. Moreover, these are not the only conjectures which the accident presents and suggests. We may as well conjecture that the coupler was open before Pogue moved the lever, and that he jerked it to test its operation and stepped in to examine the pin or some part of the coupler; that the coupler was closed when he approached it; that he drew the pin by his jerk of the lever and...