Payne v. Colvin

• Decision Date: 24 June 1921
• Docket Number: 2886.
• Citation: 276 F. 15
• Parties: PAYNE, Director General of Railroads, v. COLVIN.
• Court: U.S. Court of Appeals — Seventh Circuit

276 F. 15

PAYNE, Director General of Railroads, v. COLVIN.

No. 2886.

United States Court of Appeals, Seventh Circuit.

June 24, 1921

H. J Killilea and C. H. Van Alstine, both of Milwaukee, Wis., for plaintiff in error.

Arthur W. Richter and Frank E. Waldron, both of Milwaukee, Wis., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

BAKER Circuit Judge.

Colvin plaintiff in the trial court, recovered judgment for personal injuries sustained while performing interstate service for an interstate railroad company.

His action was based on the federal Employers' Liability Act (Comp. St. Secs. 8657-8665), and he pleaded that his injury was caused by the company's failure to maintain automatic couplers as required by the federal Safety Appliance Act (Comp. St. Secs. 8605-8612) and also by the engineer's failure to obey his stop signal.

Colvin was a brakeman; the engine, with several cars attached, was backing toward a standing baggage car; Colvin was on the car that was to be coupled to the standing baggage car; the engine was moving quite slowly; when the cars were 40 or 50 feet apart Colvin noticed that the knuckles on both cars were closed; he ran to the standing baggage car and pulled the lever at the side of the car three or four times, but without any effect in opening the closed knuckle; the other car was then 15 or 20 feet away; at that instant Colvin gave the engineer a signal to stop ('I could see the engineer's cab and there was no reason why he could not see my signal'); upon giving the signal Colvin stepped between the rails to open the knuckle on the standing baggage car; the stop signal was not obeyed; when the cars were about 3 feet apart Colvin in backing out slipped on the icy ground in trying to save himself he seized hold of a grabiron, but his right foot flew up and was caught between the couplers as they came together.

At the close of the evidence defendant moved for a directed verdict and excepted to the overruling thereof. We have read the bill of exceptions and from it we have hereinabove taken the version that is favorable to Colvin, which we must assume was adopted by the jurors. That version conflicts with testimony of other witnesses and with Colvin's own statement given shortly after the occurrence. Weight and credibility are not reviewable. On the assignment of error now under consideration the only question is whether Colvin's proofs as above stated sustained his pleaded cause of action.

Couplers must be such that the act of coupling, as well as of uncoupling, can be accomplished 'without the necessity of men going between the ends of the cars. ' Johnson v So. Pac. Ry. Co., 196 U.S. 1, 25 Sup.Ct. 158, 49 L.Ed 363. Emphasizing the words 'between the ends of the cars,' defendant contends that the true construction of the statute ^[1] is that, if cars to be coupled are standing a considerable distance apart with knuckles closed, the command of Congress is satisfied, although there is no appliance extending outside of the rails by means of which the knuckle can be opened, and although the brakeman is thereby compelled to go between the rails on the intervening track and open the respective knuckles by hand, provided that the couplers, with knuckles so opened and remaining open, will couple automatically by impact. But opening the knuckles is a necessary part of the act of coupling as a whole;...