Pennsylvania R. Co. v. Bourke

• Decision Date: 09 November 1932
• Docket Number: No. 6007.,6007.
• Citation: 61 F.2d 719
• Parties: PENNSYLVANIA R. CO. v. BOURKE.
• Court: U.S. Court of Appeals — Sixth Circuit

61 F.2d 719 (1932)

PENNSYLVANIA R. CO. v. BOURKE.

No. 6007.

Circuit Court of Appeals, Sixth Circuit.

November 9, 1932.

W. N. Snow, of Grand Rapids, Mich. (Knappen, Uhl, Bryant & Snow, of Grand Rapids, Mich., on the brief), for appellant.

Charles F. Hext, of Grand Rapids, Mich., for appellee.

Before MOORMAN, HICKS, and SIMONS, Circuit Judges.

MOORMAN, Circuit Judge.

This is an appeal from a judgment in damages recovered by the appellee for the death of her husband, Joseph D. Bourke, while employed as a brakeman in the service of the appellant in its yards in Grand Rapids, Mich. The appellant is a common carrier engaged in interstate commerce, and the deceased was employed in such commerce at the time of his injury. From January 1, 1928, to the date of the accident, September 7, 1929, he was regularly employed as a member of a switching crew whose work consisted of the storing of cars and the assembling of others into trains in the Grand Rapids yards. One of the nightly duties of this crew was to switch the cars of a certain train arriving at Grand Rapids about 8:15 p. m. to the coach yards or storage tracks, some distance south of the station, and to assemble other cars into a train for the same run the next day. The track leading to these yards was known as a lead or ladder track. Immediately east of and parallel with this track as far south as a switch was the southbound running track. Beginning about the switch, the lead track curved to the southwest. The coach yard tracks diverged from the lead tracks south of the switch. On the night in question the crew proceeded from the Union Station southwardly over the switch, placed a car on one of the coach yard tracks some distance south of the switch, and then pulled up to place a car on the transfer track, the first track south of the switch. It was Bourke's duty to signal the engineer when the cars had cleared the switch and to throw the switch for the transfer track. He was riding on the first car next to the engine. As the engine approached the switch an N-2 type of engine was proceeding south on the south-bound running track. Bourke alighted from the car on which he was riding into the space between the two tracks and, while standing there, was struck either by his own cars or the engine on the adjacent track.

The N-2 engines were larger than other types of engines used in the appellant's yards at Grand Rapids. The overhang on the N-2 engine at the cylinder casing and guide yoke was 1 7/8 to 3 1/8 inches greater than at the same point on the smaller engines. This overhang, however, extended only about 9 feet back of the pilot beam, and the other parts of the engine, including the tender, did not differ materially in width from the corresponding parts of smaller types of engines. The overhang of cars moving on the lead track was greatest at the point of the curve. From the switch point south for some distance the clearance between any type of engine on the south-bound running track and cars on the lead track was at most narrow. Where the overhang on the lead track was least, the clearance between an N-2 engine on the south-bound track and coaches on the lead track was from 31 3/8 to 34½ inches, at the point where the overhang was greatest it was from 18 3/8 to 21 1/8 inches.

The only witness who saw Bourke at the instant of the accident was the engineer on the N-2 engine. He testified that Bourke was not struck by the cylinder casing or the guide yoke, but sustained his injury after the wider part of the engine had passed him. It is not contended by the appellee that Bourke did not see the engine approaching. The contention is that he saw it, and, not being advised that such type...