Norfolk & W. Ry. Co. v. Hauser

• Citation: 211 F. 567
• Decision Date: 11 March 1913
• Docket Number: 1,136.
• Parties: NORFOLK & W. RY. CO. v. HAUSER.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

211 F. 567

NORFOLK & W. RY. CO. v. HAUSER.

No. 1,136.

United States Court of Appeals, Fourth Circuit.

March 11, 1913

Rehearing Denied June 11, 1913.

J. C Buxton, of Winston-Salem, N.C. (Watson, Buxton & Watson, of Winston-Salem, N.C., Theodore W. Reath and F. Markoe Rivinus both of Philadelphia, Pa., on the brief), for plaintiff in error.

Lindsay Patterson and E. B. Jones, both of Winston-Salem, N.C. (Jones & Patterson, of Winston-Salem, N.C., on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and DAYTON and SMITH, District judges.

SMITH District Judge.

The defendant in error brought an action at law for damages against the plaintiff error on the 14th of February, 1908 for injuries claimed to have been inflicted by the plaintiff in error's negligence on the 20th of March, 1907. The deceased, Robert A. Hauser, was employed as an engineer by the Norfolk & Western Railway Company. On the 23d day of March, 1907, he was employed to run an engine operating on a train of the railway company running from Portsmouth, Ohio, to Columbus, Ohio. The train as made up was what is called a double header; that is, it consisted of 37 loaded coal cars, and the motive power was furnished by two engines at the head of the train, of which the second engine from the head was being operated by the deceased, Robert A. Hauser. The train was made up and the place of the engine designated by a superior officer of Hauser. At or near Clifford, Ohio, the engineer of the front engine attempted to bring the train to a stop to avoid colliding with the rear of a train in front of him, and applied his air brakes, but according to his statement discovered that the air brakes failed to work, whereupon he reversed his engine, and did all in his power to stop the train. Thereupon the car in the rear of the second engine, being forced forward by the momentum of the train which was endeavored to be stopped, was thrust forward upon the tender of the second engine, mounted upon trucks and platform of this tender, drove the water tank on the tender loose from its fastenings, pushed it forward on and over the cab of the engine, and thereby inflicted such injuries upon the deceased that he died in consequence. The particular acts of negligence charged in the complaint against the defendant in this case were that the deceased was operating an engine which had no pilot, was much smaller in size than the front engine, was used only for the purposes of a yard or shifting engine, and was old and weak and dilapidated, and not in condition to stand the pressure of the weight of the loaded train upon a sudden stoppage; that it was negligence to place it between the front engine, which was larger and heavier, and the train of loaded cars; and that it was further negligence to place an engine unfitted to stand the squeeze or pressure between a heavy engine, reversed so as to come to a stop, and a train of heavily loaded coal cars, as the possibility of it happening that the train would come to a sudden stop might occur, and in such a case no engine should be placed in that position that could not stand the impact. In other words, the act of negligence alleged may be said to be that the placing between a larger and heavier engine, in good condition and a long train of loaded freight cars, of an engine tender too weak to stand the pressure or impact that might exist consequent upon attempted sudden stoppage of the train, was an act of negligence. The other acts of negligence alleged consist in the charge that it was negligence to place the smaller engine in the rear of a larger engine in running a double header under the circumstances of this case, and, next, that the railway company negligently used old, worn-out, and defective air brakes on the train, so that the train could not be controlled or quickly stopped.

The assignments of error claim that there was no evidence that the second engine, upon which the plaintiff's intestate was killed, was rotten or otherwise defective, nor any evidence that there was any defect in the air appliances; the testimony of the defendant being to the effect that the trouble about the brakes was that some one had turned an angle cock on the second car below the engine on which Hauser was running, so as to let the air out of the main line or pipe for the brakes for all of the cars of the train from that point to the end of the train, and make it impossible for the engineer to apply his brakes, except to the two engines and the first two cars of the train. The evidence as to the insufficient condition of the tender of the second engine to stand the shock of the impact or squeeze between the forward engine and the heavy train behind it was mainly opinion evidence from witnesses who assumed to be competent witnesses, skilled in their vocation, based upon inferences drawn from the occurrence and characteristic incidents of the accident. The testimony showed, as before stated, that when the impact came from the train of loaded cars behind the second engine, the first car of the train mounted upon the trucks and platform of the tender to the second engine, practically demolishing them and completely demolishing the water tank, tearing it from its fastenings, and thrusting it forward, over and on the cab of Hauser's engine, so as to inflict the injuries which caused his death. No damage was done to the front engine and no damage seems to have been done to any of the cars of the train, except to the car which inflicted the injury and destruction to the tender, and which was not much damaged. The only part of the train which seemed to have been much hurt was the tender to this second engine. The wrecked engine and tender was carried away by the railroad company, and therefore the testimony as to its condition must be more or less based upon what can be inferred as results from what occurred, as it would appear to be a matter of impossibility for the defendant in error to prove by actual examination what was the condition of the wrecked engine and tender. That was in the possession of the railway company, and removed from the scene at the time of the accident. The trial judge thought the testimony concerning all the facts which occurred was sufficient to go to the jury, and to support an inference as to the defective condition of the engine and tender as there was testimony to the effect upon which the conclusion of the jury could rest that the wreck could not have resulted unless the engine and tender wrecked had been weak or defective.

The issues in the case for the jury under the pleadings, therefore, would appear to be reduced for the consideration of this court to this: Was the trial judge justified in leaving it to the jury to say, in the first place, whether or not it was negligence on the part of the railroad company to direct one of its employes, an engineer, to operate an engine with its tender in the position the one in question was placed, between a heavier and stronger engine in front and a heavily loaded train of coal cars behind, not sufficiently strong to stand the shock in case of a sudden stoppage as against the heavy engine in front coming to a stop as fast as the engineer can bring it (either by the use of his brakes or reversing his engine) and the impact of the heavily loaded train of cars behind? Should any engine, with human employes thereon, have been put by the company in that position, unless it was capable of standing that squeeze or impact, and if an engine or tender was put in that position, so that if the stop occurred, and it was incapable of standing that impact, was that negligence on the part of the railway company? In the next place, if such was negligence, then was the engine and tender upon which Hauser was required to work an insufficient engine to stand this impact? Unless these were questions to go to the jury, the presiding judge below erred in sending the case to the jury.

The plaintiff in error moved the court below for a peremptory instruction to the jury to find a verdict for the defendant on...