Pennsylvania R. Co. v. Jones

• Decision Date: 09 July 1924
• Docket Number: 4045.
• Citation: 300 F. 525
• Parties: PENNSYLVANIA R. CO. v. JONES.
• Court: U.S. Court of Appeals — Sixth Circuit

300 F. 525

PENNSYLVANIA R. CO. v. JONES.

No. 4045.

United States Court of Appeals, Sixth Circuit.

July 9, 1924

Norman A. Emery and Union C. De Ford, both of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for plaintiff in error.

George T. Farrell, of Lisbon, Ohio (William A. O'Grady, of Wellsville, Ohio, and Jay Clerk, on the brief), for defendant in error.

Before DENISON, MACK, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

Jones recovered a judgment for personal injuries received by him while he was working as a brakeman employed in interstate commerce on the defendant railroad. The fault alleged was the employment of a coupling device which could not be operated in uncoupling without the necessity of going between the cars, and recovery thus depended upon the Safety Appliance Act (section 2, Act of March 2, 1893; section 8606, C.S.).

The first question involved is whether there was any evidence to support the jury's conclusion that the coupler was of the forbidden character. In a switching operation in the yards, a cut of cars was being pushed by the engine. The two leading cars farthest from the engine were to be, at the right moment and while still in motion, uncoupled, so that they might be kicked over a switch onto another track. Jones was riding at the right-hand forward corner of the third car. He had his left foot in the stirrup, which is on the side of the car at the corner. He was facing in, leaning forward, and holding onto the brake wheel with his left hand. The brake wheel staff was about two feet from the corner of the car. In his right hand he held a lantern, and his right foot rested upon the outer end of the lever, which was designed by its depression to lift the coupling pin upon the inner and short arm of the same lever. The operating motion would be a direct downward pressure. The apparatus was unquestionably, speaking in a general way and without reference to specific defects, of a standard and approved type. At what he judged the proper moment, Jones pushed down with his right foot. The pin did not lift. He tried again, moving his foot a little further in, and the second effort was unsuccessful, or perhaps his foot slipped off without any effective effort. He then decided that he would get a better result if he put his body and his weight more directly over the lever, and accordingly he swung his right arm in, grasped the wheel with both hands and then, excepting for his left foot, which remained in the stirrup and his left leg reaching to it, swung his body around between the ends of the cars and opposite the brake staff, and put his whole weight upon the lever near that point. This time the pin lifted and the cars uncoupled, but the inward swinging of his lantern, as he reached for the brake wheel, had been mistaken for a stop signal, the car he was upon suddenly slowed, and, as some of the evidence tended to show, he was thrown down upon the track and thus hurt.

The question chiefly argued has been whether the mere fact that the device did not operate upon the first or perhaps the second trial was any substantial evidence that there was a statutory defect, or was inconsistent with the thought of the phrase 'can be operated.' It is pointed out that the statement in Chicago Co. v. Brown (an uncoupling case) 229 U.S. 317, 321, 322, 33 Sup.Ct. 840, 841 (57 L.Ed. 1204) 'the failure of a coupler to work at any time, sustains a charge of negligence in this respect,' was merely a recital of counsel's concession, and in a later coupling case, San Antonio Co. v. Wagner, 241 U.S. 476, 484 36 Sup.Ct. 626, 60 L.Ed. 1110, the very point was carefully reserved. In Atlantic Co. v. Parker, 242 U.S. 56, 37 Sup.Ct. 69, 61 L.Ed. 150, the only holding is that the jury may infer a statutory defect if there is evidence that the required automatic coupling did not occur because there was too much lateral play in the drawheads, and the fact that some lateral play is necessary in order to permit coupling on a curve did not necessarily show that there was not an unnecessary amount in these drawheads. These cases are closest in point, but they fall short of any definite holding; and, in addition, it must be noted that the problem and the inference from nonaction are not the same in a matter of uncoupling as in a matter of coupling. Apparently coupling by impact will always occur automatically, unless there is some defect or some abnormal attendant condition. Hence a failure to couple usually...