Payne v. Connor, 1507.

• Decision Date: 02 August 1921
• Docket Number: 1507.
• Citation: 274 F. 497
• Parties: PAYNE, Director General of Railroads, v. CONNOR.
• Court: U.S. Court of Appeals — First Circuit

274 F. 497

PAYNE, Director General of Railroads, v. CONNOR.

No. 1507.

United States Court of Appeals, First Circuit.

August 2, 1921

Charles B. Carter, of Lewiston, Me. (White, Carter & Skelton, of Lewiston, Me., on the brief), for plaintiff in error.

William H. Gulliver, of Portland, Me., for defendant in error.

Before BINGHAM, JOHNSON, and ANDERSON, Circuit Judges.

BINGHAM Circuit Judge.

This is a writ of error from a judgment in favor of the plaintiff in an action brought by John H. Connor in the District Court for the District of Maine under the federal Employers' Liability Act (Comp. St. Secs. 8657-8665) and the Safety Appliance Act (Comp. St. Secs. 8605-8623), for injuries sustained by him June 23, 1918, while in the employ of the Portland Terminal Company, a railroad engaged in interstate traffic and under the control and management of John Barton Payne as Agent and Director General.

The declaration contained one count, and alleged that the defendant at the time of the injury was a common carrier engaged in interstate commerce, and that the plaintiff was in its employ as a brakeman in interstate commerce; that the defendant failed to furnish the plaintiff a safe place in which to perform his work, and to provide reasonable and sufficient rules and regulations for the conduct of its business; that it was guilty of negligence in shunting with too great force and speed certain of its cars upon three still cars standing on the main turnout in its yard without warning the plaintiff and in failing to securely set the brakes on the still cars and that it failed to equip and maintain said still cars with suitable brakes and appliances, as required by the Safety Appliance Act. The defendant pleaded the general issue, with a brief statement in which it admitted that the plaintiff and defendant were engaged in interstate commerce at the time of the injury, and alleged that the plaintiff was not in the exercise of due care and that he assumed the risk.

In its assignment of errors the defendant complains that the court erred (1) in not directing a verdict in its favor, on the ground (a) that the plaintiff assumed the risk, and (b) that there was no evidence from which it could be found that the defendant was in default under the Safety Appliance Act, or that it was guilty of negligence; (2) that the court erred in charging the jury on the question of assumption of risk, in that it did not further tell them that if the plaintiff knew or in the exercise of reasonable care should have known, that the defendant was kicking the cars negligently-- too fast, etc.-- he assumed the risk; (3) that it erred in refusing to give the defendant's second, third, fourth, and fifth requested instructions; (4) in admitting the testimony of Vanier and Cannon as to whether either of them stopped the cars where they intended to; (5) in admitting the testimony of Rainy (a) as to what he had observed in switching operations on the Grand Trunk; (b) as to what is the ordinary rate of speed upon that road; (c) in the reception of his testimony as to how far three loaded cars, if properly braked, would be moved if three or four cars were kicked down upon them at the rate of 4 to 6 miles an hour; and (d) because said witness was not qualified as an expert; and (6) that the court erred in admitting the testimony of Connor as to what pay a brakeman in the defendant's employ received at the time of the trial.

The railroad yard in which the plaintiff was employed consisted of a number of tracks, including a main line and various cross-overs. It was a place where freight trains were reclassified and made up. The tracks in this locality run substantially east and west. There were various buildings about the yard, among which were the yardmaster's office and a lobby, where the employees changed their clothing. North of the yard and adjoining it was a highway known as Commercial street. Emery street ends at the edge of a cliff overlooking Commercial street and the yard, and at the foot of that street a flight of steps descends to Commercial street at a point near the yardmaster's office. The employees of the defendant living in that part of the city of Portland were accustomed to use these steps in going to and from their work in the yard, and to the yardmaster's office and the lobby, and to cross the tracks there in going to and from the repair shops and roundhouse. In the course of the work of shifting cars and making up trains on the morning of the accident, three loaded box cars were kicked down upon the main turnout; and stopped so that the east end of the easterly car was about opposite the office. Later in the progress of the work four more loaded cars were kicked in upon the main turnout and allowed to run into the three still cars; there being no one on the four cars to brake them down. At or about the time the four cars struck the still cars, the plaintiff and his conductor, Dougal, their work being about finished, came from the east, riding upon an engine used in their work, and on reaching a position a short distance easterly of the east end of the still cars they stepped off, intending to go to the office or lobby, the conductor leading the way, and crossed the track on which the still cars were and about 8 feet easterly thereof. The conductor passed safely over the track, although he was struck after he had passed beyond the northerly rail; but the plaintiff, who was a short distance behind him, was struck and knocked down by the three cars, which had been suddenly put in motion by being struck by the four kicked cars, and one of his legs was broken and he suffered permanent injuries.

The evidence tended to show that at the time the three cars were kicked from the west down the main turnout a brakeman by the name of Vanier was aboard them; that he had been instructed by his conductor to ride them down on that line and to stop them at a point so that there would be room to receive four other cars, which he was to kick in upon that line, and leave a clearance between the four cars and cars that might pass on adjacent lines; that Vanier, in the performance of his duty, undertook to brake down the cars to meet this requirement, but the brake on first car was worthless, that on the next would not hold, and that after reaching the third car and braking it he succeeded in stopping the three cars some three car lengths beyond where he had undertaken to stop them; that the rate of speed at which the four cars were kicked upon the three still cars was from 10 to 15 miles an hour; that, although the defendant had no rules limiting the speed at which cars should be kicked, but left it to the discretion of the conductor, the usual and reasonable speed was from 4 to 6 miles an hour; that cars like the three cars, if adequately braked, when struck by cars moving at the rate of 4 to 6 miles an hour, if moved at all, would not be moved more than 2 or 3 feet, but that in this case they were driven back with a jump and continued on for three or more car lengths; and that the main turnout in this locality had a slight grade to the east. A rule of the company provided that--

'Cars left on side tracks must be properly secured by brakes being set, and, when necessary, trigged. Standing on grade, all cars must be coupled. They must not obstruct the use of other tracks, or in any way endanger the safety of passing trains,' etc.

The evidence further tended to show that there was danger that cars left standing on the main turnout unbraked would, on account of the grade, run easterly, and, if the turnout switch was open, go onto the main line. There was evidence that neither the plaintiff nor his conductor heard or saw the oncoming four cars, and that the smoke of their engine was likely to obscure the sight of...