Pittsburgh & W.R. Co. v. Thompson

• Decision Date: 05 October 1897
• Docket Number: 429.
• Citation: 82 F. 720
• Parties: PITTSBURGH & W. RY. CO. V. THOMPSON.
• Court: U.S. Court of Appeals — Sixth Circuit

82 F. 720

PITTSBURGH & W. RY. CO. V. THOMPSON.

No. 429.

United States Court of Appeals, Sixth Circuit.

October 5, 1897

This is an action at law brought by Frank H. Wakelee to recover damages for personal injuries sustained by him while engaged in the service of the Pittsburgh & Western Railway Company as a brakeman. After suit was brought, the plaintiff, Wakelee upon an inquest found, was declared to be an insane person and letters of guardianship were duly issued to Samuel M Thompson, who thereupon was suffered to prosecute the pending suit in behalf of his said ward. There was a verdict and judgment in favor of the plaintiff. This writ of error has been sued out to reverse that judgment by the Pittsburgh &amp Western Railway Company.

Jones & Anderson, for plaintiff in error.

Geo. F. Arrel, L. W. King, and Thomas McNamara, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SAGE, District Judge.

After making the foregoing statement of facts, the opinion of the court was delivered by LURTON, Circuit Judge.

At the conclusion of all the evidence, the plaintiff in error moved for an instruction to find for the defendant, which was overruled. This has been assigned as error, and has necessitated the examination of a very voluminous record, containing all the evidence submitted to the jury. In substance, it appears that the plaintiff, Wakelee, at the time he suffered the very serious injury of which he complains, was in the employment of the said railway company as a brakeman, and, such, was a member of a switching crew in the yards of the company at Painesville, Ohio. On the 4th of October, 1892, six freight cars were received from the Nickel Plate Railroad Company, a road crossing the Pittsburgh & Western at Painesville. These cars had been placed on a transfer track by the Nickel Plate Company, and were removed to the yards of the Pittsburgh & Western Company by an engine and the switching gang of which Wakelee was a member. One of these cars was owned by a private company, and is known and designated in the record as 'Car 96, G.H.H.,' and this car alleged to have had a defective drawbar, and to have been the direct occasion of the injury to Wakelee. In the course of the distribution of these cars in the yard of the Pittsburgh & Western Company, it came about that this car No. 96 was cut out from the rest, placed on one of the yard tracks, and blocked. It then became necessary to move two others of the same draft of cars down to this standing car, to be coupled to it. To this end, the two cars, after being cut out, were started on a downgrade in the direction of the alleged defective car, and Wakelee ordered by his conductor to ride them into position for coupling. The brake by which these moving cars were controlled was at the end of the car next the stationary car, and the brake wheel was at the upper end of an upright brake staff, and about 13 inches above the top of the car. To handle this brake, the brakeman was obliged to stand on a narrow step or shelf at the end of the car, about 23 inches below the top of the car. Thus, the proper position of the brakeman would place him on a shelf about 3 feet below the brake wheel, and between the two cars to be coupled. These two cars came together while Wakelee was setting the brake by swinging against the wheel with both hands. The two cars came so close together that the top of the stationary car struck Wakelee in the back, just at the base of the spinal column, and squeezed him between the outer rim of the brake ratchet wheel and the top of the defective car. From this he sustained permanent and serious injuries.

Two special inquiries were submitted to the jury upon which they were instructed to find, the first of which was: 'Was the car No. 96, G.H.H., so defective when it passed into defendant's control and use as to make it dangerous for trainmen to handle it? ' To this the jury answered, 'Yes.' The second interrogatory was in these words: 'Was the car 96, G.H.H., inspected by defendant's inspectors when it was received into defendant's use? ' The answer to this was, 'No.' In addition, the jury returned a general verdict in favor of the plaintiff. These two interrogatories presented the principal issues of fact involved in the case, and upon each the jury have definitely found in favor of the contention of Wakelee. The argument of the learned counsel in support of the proposition that the court erred in not instructing the jury to find for the defendant railway company is based chiefly upon the contention that there was no sufficient evidence in support of the claim that this car was so defective as to be dangerous to handle by trainmen. This is chiefly predicated upon the assumption that Wakelee's evidence, as a witness for himself, is so thoroughly contradicted by the testimony of other witnesses and by the circumstances of the case as not to be worthy of going to the jury. Counsel for plaintiff in error admit that this car 96 was in a defective condition, but say that the defects were not such as to enable the drawhead to slip back under the car, or to cause the cars to come closer together than if in a sound condition, and that the defects which in fact existed had nothing to do with the injury to Wakelee. This car was inspected by Murphy, an inspector for the Nickel Plate Company, on the day it was transferred to the Pittsburgh & Western Company, who made a record in these words: 'G.H.H. bro. draw & Int-sill bro. end ceiling & C. plate bolts, transferred and ret: 10-4. ' Murphy testified that he had no recollection of this car or of its inspection, and could only speak from this entry made by him in a book kept by him for his own satisfaction. He explains his record by saying that it means that the center and intermediate sills were broken and the end ceiling,-- that is, the upright planks at end of the car,-- and that certain center bolts were broken, how many the entry does not show; that the extent of these breaks he never inserts, but would not have passed the car unless he had supposed it safe to handle; and that the defects he made a note of would not enable the drawhead to slide back or make the car dangerous to handle. He further says if he had found the draft timbers broken and the follower gone, he would have noted it, and marked the car defective and dangerous. The draft timbers, as shown by the evidence, are heavy timbers under the center sill and on either side of the drawhead, forming a slot to hold it up and in place. If these timbers were broken or loosened, so that they could be pushed aside, the flange on the drawhead might not hold it in place, and the drawhead might be pushed back under the car, so that they would come closer together. These draft timbers are bolted to the sill and to the floor of the car. Upon the other hand, Wakelee testified that, very shortly after he was hurt, he examined this car, and found that 'the drawsill was all broken on one side, and the intermediate sill was broken, and the end sill where the flange on the drawhead comes against it was all chawed out in them. The draft sill was broken where the followers are bolted in. The draft timber was broken out sideways. It was shivered and broken and pressed right out sideways. ' Witness, on cross-examination, explained what he meant by 'draft timbers,' saying:

'What I call the 'draft timber' is timbers that are alongside the drawhead, and hold the drawhead in place, where the followers and springs are bolted into. (Sic.) Q. Was the sill above that broken? A. Yes, sir; weakened. q. Both draft sill and draft timber was broken? A. Yes, sir. Q. Were the bolts broken? A. I did not examine the bolts to see whether they were broken or not. Q. You noticed that the follower was broken? A. It was gone altogether.'

This witness was examined and cross-examined at great length concerning the injuries to this car, and it is very clear, both from his evidence and that of experts, that, if the car was in the condition to which he testified, the drawhead might slide under the car, and thus bring the cars much more closely together than otherwise. This presented a very sharp conflict of fact, and Murphy admitted that if he had found the draft timbers broken and pushed sidewise and the follower gone, as described by Wakelee, he would have regarded the car as dangerous, and would not have received it. Mulqueeny, inspector for the Pittsburgh & Western Company, at Painesville, had no record concerning this car, and no recollection of its inspection, and could only speak as to his habit and course of business, from which he believed he had passed this car as not dangerous to handle. In addition to this, there was some opinion evidence to the effect that defects such as those noticed in Murphy's record would make the car dangerous to handle, and the drawhead liable to give way. It is clear from this statement, without going more largely into the details of the evidence, that there was evidence that the draft timbers which hold the drawhead in place were defective, and defective to such an extent that, when these cars came together, they might give, and thus permit the drawhead to slide back in such way as to bring the car ends as close together as the deadwood on them would permit. There was therefore evidence of a defect in a vital particular, having a direct relation to the injury sustained by Wakelee.

The question of the credibility of Wakelee was one for the jury. If his evidence on this point was believed, he made out the most vital point in his case; and, unless there was some other vital question in the case upon which there was no such evidence as would reasonably support a verdict in his favor it was not error to submit the issues to a jury. But it is next contended...