Norfolk & W. Ry. Co. v. Reed

• Decision Date: 16 December 1908
• Docket Number: 791.
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: NORFOLK & W. RY. CO. v. REED.

167 F. 16

NORFOLK & W. RY. CO. v. REED.

No. 791.

United States Court of Appeals, Fourth Circuit.

December 16, 1908

In an action for injuries to a brakeman by falling off a flat car while attempting to operate a drop brake thereon, evidence held not to sustain a finding of negligence by the company.

This was an action for damages brought by the defendant in error against the plaintiff in error for injuries received while acting in the discharge of his duties in the capacity of brakeman and in the employ of the plaintiff in error on the 6th day of October, 1905, in the yards at Bluefield, W.Va.

The record discloses that the defendant in error was an experienced brakeman, and that prior to the accident he had been employed as brakeman for a period of two years on the Chesapeake & Ohio Railroad, and on the Norfolk & Western Railway for five additional years, making an aggregate experience of seven years. At the time of his injury defendant in error was employed in the Bluefield yards. In the yards there were three flat cars, loaded with steel rails, which had been brought in that morning about 3 o'clock, and orders had been given to remove them to the east end of the yard, there to be unloaded. The rails protruded beyond the ends of these cars, so that it was impossible or impracticable to couple the yard engine onto them, and consequently they were taken out of the train, and an effort was made to roll the cars down the track by gravity so that the engine might be brought in behind them. The car in front and the one behind were Norfolk & Western cars while the one in the middle was a Georgia Southern & Florida car, and was equipped with what is known as a 'drop brake,' that is, the brake staff, when not held up by the brakeman for the purpose of putting on or taking off the brakes, is intended to drop down under the car, with the handle on a level with the floor thereof. The handle to the brake was an ordinary crossbar, forming with the end of the brake staff something like the letter 'T.'

The evidence shows that the conductor, a brakeman by the name of Compton (deceased at the time of the trial), and the defendant in error, after the three cars had been cut out from the train, in order to start them down the track, were pushing them, and, when they had succeeded in starting the cars, each of the parties mentioned climbed upon his particular car to manipulate the brake as necessity might require, the defendant in error mounting the middle car which was equipped with a drop brake, as stated. The plaintiff below alleged that he was unfamiliar with this kind of brake, and, when he went to release the brake, he found the brake stem standing above the floor of the car about the same height of a stationary, or ordinary rigid brake, which he supposed the same to be; that, when he grasped the brake stem for the purpose of manipulating the brake, the same fell to its normal position, precipitating him to the ground between the car upon which he was riding and the car following, whereby he lost one leg and was otherwise injured.

The cause came on to be heard in the District Court for the Southern District of West Virginia, and the plaintiff below received a verdict for $10,000, whereupon a writ of error was sued out to this court.

John H. Holt (Theodore W. Reath, Joseph I. Doran, and Holt & Duncan, on the briefs), for plaintiff in error.

Joseph H. Gaines (Staige Davis, Upshur Higginbotham, and H. D. Rummell, on the briefs), for defendant in error.

Before PRITCHARD, Circuit Judge, and WADDILL and BOYD, District Judges.

PRITCHARD, Circuit Judge (after stating the facts as above).

There are six assignments of error filed herein, but we deem it necessary to consider only the second assignment, which is as follows:

'The court erred in refusing to sustain the motion of the defendant to direct the jury to return a verdict in favor of the defendant and against the plaintiff, because there was not a scintilla of evidence to establish knowledge on the part of the defendant, either actual or constructive, that the brake complained of was either defective, or out of repair and dangerous.'

The jury found, upon a special interrogatory, that the inspection of the brake, shortly after the arrival of the car, was not a proper and sufficient one, as a matter of fact, and upon this finding the case seems to have been determined by the court below.

In order to properly settle the questions presented for our consideration, it becomes necessary to determine as to whether, under the circumstances, the finding of the jury to the effect that there had not been a proper inspection of the brake in question in that the brake was found in an abnormal position would be sufficient to charge the defendant below with negligence. It is well settled that it is the duty of the master to furnish the servant with safe appliances with which to work, and, having furnished such appliances, it still remains the duty of the master to keep the same in good repair. While this duty is imposed upon the master, nevertheless, in a case where it is shown that the appliance furnished was defective, the existence of such defect must have been known to the master, or it must be shown that a sufficient time had elapsed before the time of the injury to raise the presumption that the master had knowledge of the same, in order to entitle the party thus injured to recover. The appliance known as the 'drop brake,' or disappearing brake, according to the evidence, is in common use on many of the railway systems of the country, in the interchange of traffic incident to interstate business. Cars equipped with such brakes are used on almost every railway system throughout the country, and it appears, in this instance, that cars thus equipped had been in use on the Norfolk & Western Railway system for a number of years. The drop brake is distinguished from the ordinary upright or rigid brake in that it is in the shape of a bar like a T, the ordinary brake being circular in form and in the shape of a wheel.

Therefore, when the brakeman, on this occasion, who had been in the employ of the Norfolk & Western Railway for about five years, and perfectly familiar with a brake shaped like a wheel, saw this brake, he was put upon notice that it was not the ordinary brake in use upon that system, and owing to the pattern of the handle, he must have known that it was a drop brake, inasmuch as he testified that he had seen brakes of that character, and therefore, in the manipulation of the brake, he should have governed himself accordingly.

On page 29 of the record, the defendant in error testified as follows in regard to the condition of the brake at the time he was injured:

'Q. When did you go to work in the railroad service? A. Well, sir, I went to work on the C. & O. in 1892. Q. How long did you remain with the Chesapeake & Ohio? A. A couple of years. Q. In what capacity? A. Brakeman. Q. Freight or passenger trains? A. Freight. Q. With what company did you next take employment? A. The Norfolk & Western Railroad Company, as far as railroad companies are concerned. Mr. Holt: That's what I mean. Q. How long did you remain there? A. I stayed until the latter part of 1900, when this injury happened. Q. You were with them about five years? A. Only about five years. Q. And with the Chesapeake & Ohio two years? A. Yes, sir. Q. In what capacity did you work when you were with the Norfolk & Western? A. As a brakeman. Q. You, then, as I understand, you had, prior to this accident, seven years' experience as a brakeman? A. Yes, sir. Q. Upon freight trains? A. Freight and passenger trains. * * * Q. What kind of handle is used on the Norfolk & Western freight-car brakes? A. There is a wheel used. Q. Do they have upon any of their freight cars-- Are there any brakes with a handle that is not a wheel? A. I have never seen them; no, sir. Q. Then they have no handles on their brakes in the shape of a bar like this T that you have described? A. The Norfolk & Western hasn't any. If they have, I have never seen it. Q. When you approached this brake, then, you saw it was not a wheel, and it had to have a handle? A. Why, certainly, I saw it was not a wheel. Q. And that it was a mere crossbar? A. Yes, sir. Q. Did you ever see any of these drop brakes? A. I never handled any of them. Q. That is not my question. Have you ever seen any of these drop brakes? A. Yes, sir; I have seen them, laying down-- the drop brakes they have.'

It appears from the foregoing that the defendant, although he had never operated one of these brakes, had seen them and knew that they were in use on the Norfolk & Western Railway and that he was familiar with the peculiar shape of the handle of the same, which was the distinguishing feature of this brake. Do the facts in this case give the defendant in error any better standing than he would have had if he had found the brake in its normal position and had been injured in attempting to operate it? For illustration, suppose, when the brakeman attempted to operate the brake, he had found it in a normal position and had raised it up to the position which it should occupy while being operated, and then, in attempting to manipulate the brake, he had kicked the ratchet loose so as to render it capable of being operated, and it had dropped down to its normal position, precipitating him under the car and resulting in his injury, and upon subsequent examination the brake had been found to be in perfect working order and without defect; can it be reasonably contended that under such circumstances he would have been entitled to recover damages for the injuries thus sustained? We think not-- and why? Because the accident in that case would not have been due to the failure of the master to...