Norfolk & W.R. Co. v. Hazelrigg

• Decision Date: 07 February 1911
• Docket Number: 2,070.
• Citation: 184 F. 828
• Parties: NORFOLK & W.R. CO. v. HAZELRIGG.
• Court: U.S. Court of Appeals — Sixth Circuit

184 F. 828

NORFOLK & W.R. CO. v. HAZELRIGG.

No. 2,070.

United States Court of Appeals, Sixth Circuit.

February 7, 1911

J. H Holt and J. F. Hager, for plaintiff in error.

B. G Williams, for defendant in error.

Before WARRINGTON and KNAPPEN, Circuit Judges, and DENISON, District judge.

KNAPPEN Circuit Judge.

This is the second appearance of this cause in this court. The defendant in error (plaintiff below) brought suit for the loss of an arm, occasioned by its being caught between the bumpers of two coal cars, through the alleged negligence of plaintiff in error in using, upon a car employed in interstate traffic, a coupling device which would not operate without the necessity of going between the cars for the purpose of coupling and uncoupling; the plaintiff being at the time of his injury a brakeman doing switching work in defendant's yard, in connection with the weighing of cars. On a former trial plaintiff recovered judgment, which was reversed by this court on account of certain instructions and refusals to instruct upon the subject of contributory negligence. Norfolk & Western Railroad Co. v Hazelrigg, 170 F. 551, 95 C.C.A. 637. On a new trial plaintiff has again recovered; the judgment thereon being the subject of this review.

At the close of the evidence, defendant asked a peremptory instruction for verdict in its favor, the denial of which is assigned as error. On the former review a similar request was held properly denied. On this review the alleged failure of proof to sustain a verdict for the plaintiff is put upon the ground that the plaintiff relied in the alternative upon one of two distinct grounds of negligence, one that the chain designed to lift the locking dog or pin was broken, the other that the chain was too long, and without any showing as to which was the actual defect. There was testimony tending to show that the action of the lever indicated the existence of one or the other of the two defects. The argument presented is that for the second cause referred to, as being a defect in original construction, the defendant would be absolutely liable, but that for the first, being a defect subsequently arising, defendant would not be responsible except for a negligent failure to keep the coupling device in repair, according to the decision of this court in St. Louis & San Francisco R. Co. v. Delk, 158 F. 931, 86 C.C.A. 95; that it is incumbent upon the plaintiff to prove actionable negligence; and that in this state of the proof he has not done so, and that the jury was thus left wholly to conjecture as to the cause of the accident. This state of the evidence appeared on the former trial, and is mentioned in the opinion of this court on the former review, although it does not appear that the point we are now considering was raised or passed upon. Whatever might otherwise be the case, it is clear there is no merit in the objection raised, in view of the holding of this court in United States v. Illinois Central R. Co., 170 F. 542, 548, 95 C.C.A. 628, that, where it is apparent that a car with a defective coupling device has been hauled upon defendant's track, the burden is upon defendant to prove that it has used all reasonably possible endeavor to discern and correct the fault. The plaintiff had made his prima facie showing of negligence when he showed a defective condition of the coupling device, and the fact that the plaintiff did not show which of the two defects mentioned was the one actually existing did not make his proofs conjectural. The court submitted to the jury the question of defendant's negligence, upon each of the two grounds alleged, in a charge fully as favorable on that subject as defendant was entitled to.

The evidence showed that the plaintiff was stationed on the left or fireman's side of the train, the yard conductor being on the right or engineer's side, and from that position directing the placing of the cars on the scales and the movement of the engine in switching the cars. After a car was weighed, and as it was about to be pushed, moving backward, off the scales, or while it was passing over the scales, it was plaintiff's duty to uncouple the weighed car from the car next forward which was to be placed on the scales. The plaintiff had been engaged in coupling and uncoupling cars but from two to five days. He testified that, as the car in question was ready to be pushed from the scales, he tried three times to work the lever from his side as the car moved along, but that it would not work; that the car came to a stop; that it was impossible for him to uncouple the cars without going between; and that accordingly he called to the conductor to 'wait a minute,' and stepped in between the cars, when his arm was caught between the bumpers by an unexpected movement of the train, which seems to have been made under signal to the engineer given by the conductor. Plaintiff testified that he knew there was a lever on the other side of the connecting car, but did not know at the time whether or not it was operative. He also testified that he did not know at the time whether there was room for him to pass between the car he was trying to uncouple and the last one pushed off the scales, from the fact that sometimes the cars so kicked go 'just barely off the scales,' and that the reason he did not go around the end of the car to the other side of the train was that, if he had done so, 'they might have backed in and caught me when they were kicking these cars off,' and that, moreover, he was authorized to do as he did, having learned the yard from observation by way of watching others, and that he had no rules or book of instructions to the contrary of the course he took, but that, on the other hand, his instructions from the conductor were to 'stay on that side and cut the cars. ' There was evidence that between the car which was being kicked from the scales and the tender of the engine there were but about three cars yet unweighed. The defendant contends that it was the plaintiff's absolute duty as matter of law, on finding that the lever on his side would not work, to go around the train, either behind the car in question or in front of the engine, and requested an instruction to the jury that:

If 'they believed from the evidence in this case that there was a safe way and an unsafe way by which plaintiff Hazelrigg could have uncoupled the cars between which he was injured * * * and he, the said Hazelrigg, voluntarily and without necessity chose the unsafe way instead of the safe way and was injured in consequence, he cannot recover and your verdict must be for the defendant.'

This request was refused, the jury being instructed as...