Norfolk & W. Ry. Co. v. Hazelrigg

• Citation: 170 F. 551
• Decision Date: 19 April 1909
• Docket Number: 1,889.
• Parties: NORFOLK & W. RY. CO. v. HAZELRIGG.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

170 F. 551

NORFOLK & W. RY. CO. v. HAZELRIGG.

No. 1,889.

United States Court of Appeals, Sixth Circuit.

April 19, 1909

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

B. G Williams, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and TAYLER, District judge.

SEVERENS Circuit Judge.

This action was brought by Hazelrigg, the plaintiff below, for negligence resulting in the loss of an arm while in the employment of the railroad company, the plaintiff in error as a brakeman in its yard at Williamson, W. Va., in October 1905.

The pleadings having been several times amended, a substitute for the original petition was filed by leave of the court, and a new answer was filed. In this petition the plaintiff alleged that at the time of the accident the defendant was hauling and using cars in interstate commerce which were not equipped with proper couplings, that they were not in good repair, the particular defect being that a certain coupling pin could not be lifted out of its place so that the cars could be separated without going between the cars. This, as appeared from the evidence given on the trial, was because the chain which connected the pin with the lever was either too long or was broken. The plaintiff further alleged that he was directed by the defendant to uncouple the cars, and, after having tried to uncouple them by using the lever, he went between the cars to uncouple them, and was caught between the ends of the cars and his arm was crushed; and that his injury was caused by the gross negligence and carelessness of the defendant in permitting the couplings to be and remain out of repair and in a dangerous condition. The answer denied the negligence charged to the defendant, and alleged that the accident happened through the negligence of the plaintiff. The cause was tried by a jury, and a verdict was given for the plaintiff.

At the close of the evidence, counsel for the defendant moved for an instruction to the jury that they should render a verdict for that party. This was refused, and an exception was taken. The errors assigned relate to this action of the court, and to the refusal of instructions and to instructions given.

We see no sufficient ground for the complaint that the court refused to give peremptory instructions to find a verdict for the defendant. There was evidence which tended, at least, to support the allegations of the petition. Whether the jury ought to have regarded it as satisfactory is not a question for us. One question of law, however, is presented in this connection. For the defendant it is contended that there was no evidence whatever that the car in question was being used in interstate traffic. The court held that it was not necessary for the plaintiff to prove that the car with the defective couplings was engaged in interstate commerce, because, as the court said, there was no issue raised upon that point by the pleadings. In this we think the court was right. The petition alleged that 'the defendant was hauling and using in interstate commerce on its line at said place freight cars not equipped with couplers coupling automatically by impact, and which could not be uncoupled without the necessity of one going in between the ends of the cars. ' The answer of the defendant was that:

'It denies that, on or about November 2, 1905, it was hauling or using in interstate commerce on its line at Williamson, W. Va., freight cars not equipped with couplers coupling automatically by impact, or was so using cars which could not be uncoupled without the necessity of one going in between the ends of the cars.'

This was a literal denial, and the rule of code pleading which prevails in Kentucky is that:

'An answer which confines itself to denying in ipsis verbis the allegations of the complaint, and does not attempt to deny their substance or spirit, is bad as being evasive and tendering immaterial issues.' 1 Encl. of Pl. Sec. Pr. 798.

The instructions of the court were, as we think, in the main correct, and presented the case to the jury fully and fairly. With respect to the duty of the railroad company to equip its cars with automatic couplers and to maintain such equipment, and the duty of using all reasonable diligence in keeping the equipment in good order, the court charged the jury that the proper construction of the safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174)) was that which we have since approved in St. Louis & S.F.R. Company v. Delk, 158 F. 931, 86 C.C.A. 95, and in United States v. Illinois Cent. R. Company (a case decided at our March session) 170 F. 542. Of course, it follows that in that regard we must think the defendant at least has no ground for complaint.

There is, however, a single point on which we think the court below was in error. This was in its charge and refusal to charge concerning the subject of contributory negligence on the part of the plaintiff. The defendant requested the court to give the following instruction:

'The court further charges the jury that if they shall believe and find from the evidence that, at the time and upon the occasion of receiving the injuries sued for, the plaintiff was himself negligent, and by his own negligence contributed to the injuries sustained by him and sued for herein, and that, but for which negligence upon the part of plaintiff, if any there was, such injury could not have happened to or been sustained by him, then they must find for defendant.'

This request was refused. The charge given was:

'Certainly it is no defense in this case that he was guilty of contributory negligence in attempting to make a coupling at all, because the statute expressly provides that, if the cars are not equipped as required, the employe does not assume a risk, and you cannot defeat him because of his going in between the cars by calling it contributory negligence. If he can be defeated on any claim of this sort of contributory negligence, it must be on the ground that he failed after he got in there, and whilst trying to make the coupling under those circumstances, to exercise such care as an ordinarily prudent person would exercise under like circumstances. I am going to let you pass on that question, although I say that I doubt whether there is any evidence to justify you in so finding. However, I will allow you to pass on it.'

We think the instructions asked for should have been given, and that the instruction given was erroneous. It is apparent that the difficulty which the...