Perkins v. Northern Pac. Ry. Co.

• Decision Date: 01 November 1911
• Docket Number: 1,460.
• Parties: PERKINS v. NORTHERN PAC. RY. CO.
• Court: United States Circuit Court, District of Washington

193 F. 219

PERKINS v. NORTHERN PAC. RY. CO.

No. 1,460.

United States Circuit Court, D. Washington, Eastern Division.

November 1, 1911

W. H Plummer, for plaintiff.

Edward J. Cannon, for defendant.

RUDKIN District Judge.

On the 28th and 29th days of March, 1908, H. C. Perkins, a locomotive engineer in the employ of the defendant company together with a train crew consisting of a conductor, a fireman, and two brakemen, was engaged in hauling cars up the Kendrick hill from Kendrick to Howell in the state of Idaho. The crew made several trips daily, and on the evening of March 29th Perkins met his death while backing his engine down the hill for another load. The present action was instituted by his surviving widow to recover damages for his death; the complaint alleging negligence on the part of the defendant in failing to equip the tender with air brakes, as required by the safety appliance act (Act March 2, 1893, c 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174)), and in constructing and maintaining the uprights of one of its bridges so close to the track as to endanger the lives and limbs of its employes. The negligence charged, and the manner in which the deceased met his death, are thus set forth in the complaint:

'That upon said 29th day of March, 1908, through the negligence of the defendant company, the 'tender' attached to said engine No. 58 was not equipped with air brakes or with a 'retainer' to hold said engine and tender while running down said mountain on their return trips. That said engine No. 58 is what is known as a 'hog' engine, and is considerably wider than the ordinary engine, and the tank attached thereto was a foot or two wider than the tank on the ordinary engine. That in running down said mountain it was necessary to have a brake in operation upon the wheels of the tender of the engine in order to relieve the brakes on the drive wheels thereof, so that the latter would not become heated, and thus incapacitated. That on or about the fourth trip of said engine on said day, coming down said mountain, said defendant company furnished said crew, at the town of Troy, a 'brake wheel' to place upon and operate the 'hand brake' of said engine. That said 'hand brake wheel' was put upon said tender at or about the hour of 5 or 5:15 p.m. on March 29, 1908, at the town of Troy, and said engine and tender then proceeded, running backwards, upon said mountain; said deceased handling the same as engineer. That shortly after leaving Troy, and in the discharge of his duty, the said deceased engineer got upon the tender of his engine and tested the said hand brake by tightening the same by means of said wheel, in order to relieve the drive brakes on the engine as aforesaid. Said deceased after tightening said hand brake stepped down into the 'gangway' between said tender and engine and looked out and down at the wheels of the tender to see, as his duty required him, whether said hand brake was holding on the wheels of said 'tender' and whether it was holding tight enough, if at all. That while in said position his head struck the narrow 'upright' or timbers of said bridge No. 182, thereby knocking deceased from said engine to the track, killing him instantly. That said engine No. 58 was, immediately previous to the death of said Perkins, and for a long time previous thereto, engaged, among other things, in hauling cars over the railroad of said defendant, which cars were used in the movement and hauling of freight between the state of Washington and other states of the United States, and were engaged in interstate commerce by railroad, and said defendant was, at the time of the death of said Perkins, and for a long time prior thereto, a common carrier engaged in interstate commerce by railroad, and that said locomotive No. 58 was constantly and frequently used by said defendant in the movement of interstate commerce. That upon said mountain along said railroad line were a number of bridges besides the aforesaid bridge No. 182, which gave ample clearance between a passing engine or tender and the uprights of said bridges, but that said bridge No. 182, through the carelessness and negligence of the defendant, was built and maintained so that there was not sufficient clearance between the engine or tender such as 'No. 58' and the uprights of said bridge; the width between the uprights of said bridge No. 182 being at least two feet less than the required width or the necessary width or the width between the uprights of said other bridges upon said hill. That the death of the deceased was caused solely by the negligence of the defendant as herein set forth in failing to provide necessary and proper machinery, appliances, etc., particularly in failing to provide brakes upon said tender and in maintaining said narrow bridge.'

For the purposes of this opinion, I will admit the sufficiency of the evidence to show that the air brakes on the tender were out of repair; that the bridge in question was too narrow; that the defendant was wanting in due care in both of these respects; and that the plaintiff is entitled to recover if either of these negligent acts was the direct or proximate cause of her husband's death. Nor do I deem it necessary at this time to discuss the question of proximate cause. It is tangible proof of the primary cause that is lacking here; for while the complaint is explicit as to the manner in which the deceased met his death, and as to the immediate cause of his death, there is no direct testimony tending to sustain these allegation. The brake wheel in question was located above the end of the tank about the height of a man's head above the floor of the gangway. The deceased was last seen alive by the fireman at the brake wheel tightening the hand brake. At that time the engine was 100 or 150 yards distant from the bridge, running at the rate of 10 miles per hour. After passing the bridge, the engine gained in speed, and, in looking to ascertain the cause, the fireman discovered that the engineer was gone. The train was backed up to the bridge, and his dead body was found near the center of the bridge, outside of the rails, lying face downward, with the head turned under the left arm, and the neck broken. When found, there was a slight contusion on the right cheek, the tongue was out, and blood was oozing from the mouth. A day or two later a witness for the plaintiff claims to have found 15 or 20 hairs on the upright of the bridge, about six feet above the rails, which resembled a lock of hair of the deceased submitted to him at the trial. This is all the direct testimony in the case. The plaintiff then offered the following testimony for the purpose of explaining the manner in which the deceased came in contact with the bridge timbers:

'Q. What was the next duty of the engineer after he had tightened the hand brake? A. Why it was to find out whether it had too much braking power, or not enough.

'Q. And how was it necessary for the engineer to obtain this information? A. By looking at the tank brakes to see if the shoes were against the wheels.

'Q. In what position would he of necessity have to place himself, in order to do that? A. He would have to lean out the gangway.

'Q. Go on; how is that? A. He would have to lean out the gangway, to look down to see if they were holding.

'Q. Well, stand on the platform there and assume that you are backing down this way, or that way, that you are standing there in the gangway; just describe to the court and jury how he would have to place himself in order to look down at the air-brake shoes, or the handbrake shoes to ascertain whether or not they were holding, or were too tight or too loose? A. Well, we were backing down west, the tank was going west first, and the cab was following, and he stood tightening the hand brake on the tank, and then, in order to see if they were holding, he would have to lean out of the gangway.

'Q. Well, just lean out and show the court and jury how? A. Well, he leaned out the gangway like this; in this way (illustrating).

'Q. Could he see those brake shoes to ascertain whether or not they were holding too tight or were too loose in any other way? A. Well, he could; but he would have to be entirely out of the gangway.

'Q. In other words, he would be clear out? A. He would be hanging clear out.'

Another witness testified:

'Q. Now, in tightening the hand brakes in going down that mountain near bridge 182, just describe how that is done; what the engineer does, and what is his duty to do? A. Why, he will tighten and set up the brakes, and then he has got to look out to see whether it is too tight or too loose.

'Q. Just describe how he looks out, what position he puts his feet in, and how far he has to lean out to find that out? A. He leans out of the gangway and that is about the only way he can see his tank brakes on those wide tenders.'

This witness further testified that the gangway was above five feet above the rails, and that the engineer would have to extend his person from 16 to 20 inches beyond the body of the engine or cab in order to see the brakes.

The foregoing is all the testimony bearing directly or even remotely on the manner in which the deceased met his death or upon the cause of death.

A motion for a nonsuit interposed at the close of the plaintiff's testimony was denied. At the close of all the testimony the defendant again challenged the legal sufficiency of the evidence to sustain or justify a verdict in favor of the plaintiff, and moved the court to direct a judgment in its favor under the local practice which prevails in this state. This motion was also denied; the court reserving the right to reconsider the question thus presented on motion for judgment after verdict, should the jury...