Pennsylvania Co. v. Whitney

• Citation: 169 F. 572
• Decision Date: 11 May 1909
• Docket Number: 1,841.
• Parties: PENNSYLVANIA CO. v. WHITNEY.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

169 F. 572

PENNSYLVANIA CO. v. WHITNEY.

No. 1,841.

United States Court of Appeals, Sixth Circuit.

May 11, 1909

[Copyrighted Material Omitted]

W. B Sanders, for plaintiff in error.

D. F Anderson, for defendant in error.

Before LURTON and WARRINGTON, Circuit Judges, and KNAPPEN, District judge.

KNAPPEN District Judge.

The defendant in error (hereafter called the plaintiff) sued to recover damages on account of injuries suffered by him while in the service of the defendant as a locomotive fireman, under these circumstances: A heavy freight train, made up at Ashtabula Harbor and bound south, pulled by one engine, required additional power to take the train to the summit of Munson's Hill, several miles south of Ashtabula Harbor. Accordingly, two freight engines were attached to the rear of the train for the purpose of pushing it, the caboose being in the rear of the two pushing engines. The plaintiff was fireman upon the second of the pushing engines. At or near the summit of Munson's Hill was a switch connecting with a side track, extending about 286 feet to the south and lying to the east of and (beyond the limit of the necessary curve) parallel with the main track. At the terminus of the switch track there were no bumpers, the ground being at that point considerably depressed. The disconnecting of the engines from the train at Munson's Hill, and the connecting of the caboose to the train, were accomplished by means of a flying switch, the engines (with the caboose in the rear) being detached from the train and stopped a short distance before reaching the switch points, the switch being thrown (after the train had passed onto the main track) so as to allow the engines to pass onto the side track, and the caboose during the forward movement of the engines being detached therefrom and its speed so checked as to permit the throwing of the switch after the passage of the engines upon the side track and before the caboose reached the switch points. The switch on this occasion was thrown by the fireman of the forward pushing engine. After the engines had passed some distance down the side track, and when parallel with the main track, the plaintiff in some way left his engine and was thrown or went upon the main track, in front of the caboose, and was injured. The testimony showed that the forward one of the two engines ran off the end of the switch track, dropping into the depression mentioned. The plaintiff contended that by the shock so communicated to the rear engine (which was coupled to the forward engine) he was thrown from his engine onto the main track without fault on his part. The defendant contended that the plaintiff voluntarily and negligently, and without reason therefor, jumped from his engine, alighted upon his feet, and deliberately walked upon the main track in front of the approaching caboose.

It was the plaintiff's claim, as submitted to the jury, that both the conductor of the train and the engineer of plaintiff's engine were negligent in causing this flying switch to be made with two locomotives coupled together and on so short a switch track, and under the conditions then existing, which rendered it difficult to check the engines before reaching the end of the track. There was a verdict for the plaintiff, judgment was entered thereon, and motion for new trial denied. But three propositions are discussed in the brief of the plaintiff in error, no other questions being properly raised upon the record.

1. The plaintiff testified that, at the time the caboose was cut off, the pushing engines were going about 12 miles an hour. The witness Price testified that it would require 80 or 90 feet from the point of the switch for a caboose going down the main track to clear the engines on the switch track; that the two engines and tenders coupled together measured 120 feet, and that if going slightly downgrade and at 6 miles an hour they would require their length of 120 feet in which to stop; that if going from 10 to 12 miles an hour they would require about 300 feet; and that it is more difficult to make a flying switch with two engines than with one. The record shows that this testimony was objected to, the objection overruled, and an exception taken. The ground of the objection, however, is not stated. This omission is of itself sufficient to deny a right to review. Davidson S.S. Co. v. United States, 142 F. 315, 316, 73 C.C.A. 425; Deering Harvester Co. v. Kelly, 103 F. 261, 264, 43 C.C.A. 225.

The grounds of the objection urged in this court are that Price was not shown to be competent to testify as an expert regarding Pennsylvania engines; that nothing was said in his testimony about the condition of the rail, and the fact that its being wet and slippery would have made the stop more difficult; and that the side track was referred to in the question as 'slightly downgrade,' in opposition to the alleged fact that it was upgrade. Passing by the consideration that the grounds of the objections were not stated, none of them urged here are well taken. The witness testified that he had had about 25 years' experience as brakeman and conductor on the Erie Road, and was familiar with railroading and the operation of engines; that he was also familiar with the kind of engines used by the Pennsylvania Company, and that he knew of no particular in which they differed from the Erie engines. He was not cross-examined. The record is entirely barren of suggestion that his competency to testify as an expert regarding the operation of Pennsylvania engines was questioned. Had it been, the objection would not have been good. When Price's examination was had, the testimony had not shown the alleged slippery condition of the tracks; but had such evidence been in, the defendant could not have been prejudiced by failure to take into account a condition whose only tendency could have been to show the necessity of greater diligence in operating the engines. There was testimony of two witnesses to the express effect that the switch point was at the summit of the grade, and that the track was slightly downgrade from the switch point. It was therefore, proper to assume such fact in the question put to the expert...