Reading Co. v. Geary, 3048.

• Citation: 79 ALR 226,47 F.2d 142
• Decision Date: 21 January 1931
• Docket Number: No. 3048.,3048.
• Parties: READING CO. v. GEARY.
• Court: U.S. Court of Appeals — Fourth Circuit

79 ALR 226, 47 F.2d 142 (1931)

READING CO. v. GEARY.^*

No. 3048.

Circuit Court of Appeals, Fourth Circuit.

January 21, 1931.

Rowland K. Adams and Eugene S. Williams, both of Baltimore, Md. (Paul S. Parsons and George P. Bagby, both of Baltimore, Md., on the brief), for appellant.

Saul Praeger and Walter L. Clark, both of Baltimore, Md. (Roszel C. Thomsen, of Baltimore, Md., on the brief), for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and GLENN, District Judge.

GLENN, District Judge.

The plaintiff below (appellee here), who was a fireman employed by the defendant company, was severely injured when he was struck by a "low bridge" at a point near Brandon Station in Pennsylvania. The plaintiff brought suit under the Federal Employers' Liability Act (45 USCA §§ 51-59). In his complaint his charges of negligence were: (1) That the defendant failed to provide the plaintiff with a reasonably safe place to work; (2) that it required him to run his train under a low bridge with insufficient clearance; (3) that the defendant gave the plaintiff no sufficient warning of the danger of this bridge. The trial judge refused a motion of the defendant for a directed verdict, submitted the case to the jury, and charged them fully as to contributory negligence and assumption of risk. The jury found for the plaintiff in the sum of $23,500, and judgment was entered thereon. Appeal has been taken from this judgment.

The facts are recited as briefly as possible. At the time of Geary's injury, he was working on one of the appellant's freight trains going from Hagerstown, Md., to Rutherford, Pa. There were two engines hauling the train, the first being a Western Maryland engine operated by its trainmen, and the second being a Reading engine operated by engineman Motter and Geary, the appellee. This was an interstate train moving in part over the tracks of the Reading and in part over the tracks of the Western Maryland, and operated under a traffic agreement between the two companies.

The Brandon bridge, where the Plaintiff was injured, is known in railroad parlance as a "low bridge"; that is to say, it does not have sufficient overhead clearance for a man to pass under while standing on top of a car or on the tender of an engine. The bridge was a plain ordinary highway bridge, spanning the double track over which the defendant's train was being operated. The blueprint offered in evidence shows that the crossbeams of the bridge are 17 feet 9 inches above the rails. Below the crossbeams are "stringers" which run parallel with the tracks. These stringers extend below the crossbeams a distance of one foot, leaving a clearance of 16 feet 9 inches below. The top of the tender on Geary's engine was 11 feet 11 inches above the rails when not loaded, thus leaving a clearance of 4 feet 10 inches from the level of the tender to the lowest part of the bridge. Underneath each stringer there are a few bolts which extend down some 5 inches more. Geary is 5 feet 6½ inches in height. On the lower part of the bridge soot and smoke had accumulated for years.

At this point the tracks ran in a direction generally east and west. Telltales had been erected by the company 109 feet west of the bridge. These telltales consisted of iron poles outside the tracks and a cable hanging over the tracks. The cable supported a frame from which ropes were suspended, 5 or 6 inches apart. The frame was 8 feet long, and the telltales ropes were set in one inch from each end, and the total width over which they may warn the man below is 7 feet 10 inches. These dangling ropes, according to measurement made at one time, extended 21 inches to the left of the outside of the left rail, and 9 inches to the right of the right rail, going in an easterly direction. The gauge of the track is 5 feet 2 inches from outside edge to outside edge. The width of the tender on which Geary was working is 10 feet 2 inches, leaving a 30-inch overhang of the tender on each side of the track. Thus these particular telltales protected all but 9 inches on the left-hand side of the tender, but failed to protect 21 inches of the tender on the right-hand side, the side where the hook racks were and the side where Geary was working. Objection was made by the defendant to the introduction of this testimony as to measurements, but the objection was overruled by the trial judge. We think that he was correct in so ruling, for the reasons hereinafter set out. It is shown that the measurements were made about two and one-half years after the date when Geary was hurt. After suit had been brought, and, in fact, only about ten days before the trial, W. E. Geary (plaintiff's father) made these measurements with reference to the telltales. There was no showing that there had been any change in the telltales. It was brought out at the trial that the bridge itself had been raised, and this was clearly understood by everyone. The trial judge took the view that there was a prima facie showing of "permanence of condition," so to speak, and admitted the testimony. In this view he was strengthened, as his remarks show, by the consideration that it was clearly within the defendant's power to show any change of condition. We think that the trial judge exercised sound discretion in so ruling. The testimony showed that the telltales were supported by two upright steel pipes set in concrete bases with guys on each side. Steel cables were used to support the actual frames, and the whole structure was one which would normally stay in the same position over a considerable period of time, furthermore the duty was on the railroad to maintain these structures, and they were therefore charged with constant knowledge of their condition. It is true that the sag of the cable or loosening of the guys might have caused a few inches variation in the actual hanging of the frames. In other words, the lower corners of the frame might have been hanging on day of measurement a few inches different from the way they hung in September, 1927. The judge clearly pointed out that the defendant could introduce testimony to show any such variations, if any existed. He further instructed the jury that, in considering the testimony of measurements made in March, 1930, they should take into consideration the lapse of time. He said: "The plaintiff's measurements were taken nearly two and one half years after the accident, on the other hand there is no testimony that the telltales have ever been changed."

The leading texts on evidence and a number of cases discuss at some length the question as to when belated measurements are admissible to show conditions existing at a time materially in advance of the date of measurements.

Of course, in the last analysis it depends upon the exercise of sound discretion by the trial judge in applying the general rule to the particular case. As is said in Green v. Ashland Water Co., 101 Wis. 258, 77 N. W. 722, 726, 43 L. R. A. 117, 70 Am. St. Rep. 911:

"True, evidence of a situation existing after an injury, though a considerable time may have elapsed, is admissible to show the situation existing at the time of the injury, if preceded by prima facie proof that no change has taken place in the meantime." We think that such a preliminary showing may consist of a showing as to materials used and common sense inferences drawn from the type of construction. Considering the steel and concrete construction here used, we think that such a showing was clearly made out in the case at bar. The cases cited by appellant which deal with brake rods and other instrumentalities which are subject to constant change would not control here. One of the cited cases refers to the condition of a railroad track itself. When we consider that a track is subjected to heavy daily use and that it rests upon wooden cross-ties which in turn rest upon the ground, such a strong presumption of "permanence of condition" cannot arise as to the condition of the track itself. There are too many variable elements to be considered in the case of the track. Ballast, if used, is constantly being replenished, ties are changed at frequent intervals, and section gangs are constantly at work altering the exact alignment of tracks. We do not think, therefore, that the cases dealing with track conditions control here. Without going into an extended discussion of this matter, we think that the trial judge properly exercised his discretion in admitting the testimony. He had in mind the rule as stated in Chamberlayne Modern Law of Evidence, vol. 2, §§ 1030-1033, both inclusive. "The established rule is that the Court will infer that a particular fact or set of facts continues to exist as long as such facts usually, as a matter of experience, have been found so to continue" and in same connection we find the following statement in section 1033: "The more impermanent the fact or state of affairs, the shorter will be the time during which it will be assumed to continue. Per contra, the more enduring the nature of the situation shown to exist, the longer will it be taken to maintain its present condition."

In discussing the admissibility of evidence of the existence of a certain condition of a structure at a given time to show its prior or subsequent existence, Mr. Wigmore gives many interesting illustrations and quotes from the opinions of many distinguished jurists in support of this declaration by him: "This general principle that a prior or subsequent existence is evidential of a later or earlier one has been repeatedly laid down, and has even been spoken of as a presumption." 1 Wigmore on Evidence (2d Ed.) 772.

The testimony as to the exact situation which obtained at the time Geary was injured shows that he was in a place where one of the most important of his duties required him to be. After all, he was a fireman, and his main duty was to control the burning of the coal in the fire box. The automatic stokers, such as the one on Geary's...