Reed v. Norfolk & W. Ry. Co.

• Decision Date: 19 November 1907
• Citation: 162 F. 750
• Court: U.S. District Court — Southern District of West Virginia
• Parties: REED v. NORFOLK & W. RY. CO.

162 F. 750

REED v. NORFOLK & W. RY. CO.

United States Circuit Court, S.D. West Virginia.

November 19, 1907

Rummell & Higginbotham, J. H. Gaines, and Staige Davis, for plaintiff.

Jos. I Doran, Theodore W. Reath, and Holt & Duncan, for defendant.

KELLER District Judge.

The accident on account of which this suit was brought occurred on the yards of the defendant company at Bluefield, W. Va on October 6, 1905, about 11 o'clock a.m. The plaintiff a brakeman of some seven years' experience, was a member of a yard crew, and on the morning of the accident this crew had received orders to detach from a freight train which had arrived at Bluefield from Roanoke, Va., at about 3 o'clock a.m. that morning, three flat cars loaded with steel rails, and remove them to the east end of the yard there to be unloaded. The rails protruded so far beyond the east end of the easternmost car that it was impracticable to couple the yard engine to said car, and, in consequence, an attempt was made by the crew to roll the three cars by gravity down the track far enough to permit the engine to be brought in rear of them. The crew consisted of E. H. Johnson, the conductor, who boarded the easternmost car, the plaintiff, who boarded the middle car, and one Compton, another brakeman (deceased at the time of trial), who boarded the westernmost of the three cars. The middle car was a flat car belonging to the Georgia Southern and Florida Railroad Company, and was equipped with what is known as a 'drop' brake; that is to say, the brake stem, when not held up by the brakeman for the purpose of putting on or taking off the brake, would normally drop down under the car until the handle (an ordinary cross-bar forming with the brake staff a figure something like the letter 'T') would rest upon the floor of the car. The other two cars were ordinary flat cars of the Norfolk & Western Ry. Co. equipped with stationary brakes. The uncontroverted testimony of the plaintiff upon the trial showed that, though he had been a brakeman for the time mentioned, he had never used a brake of this character before, and had seen very few of what are known as 'drop' brakes. A witness from the Georgia Southern & Florida Railroad testified that this type of brake is quite common on flat cars in the south, being largely used in connection with the lumber industry; and that latterly many of these brakes are made so that the brake stem can be kept elevated, when desired, by means of what is known as a 'cotter key' inserted through the stem. The uncontroverted testimony of the plaintiff further showed that, when he boarded this car, the brake was set, and that the brake stem was standing up (thus being in an abnormal position for that type of brake when not being handled); that upon his taking hold of the brake handle, in order to release the brakes, the brake stem suddenly gave way-- that is, slipped down-- and he was precipitated from the rear end of the car upon the track and in front of the following loaded car (all of the three cars being slowly moving at the time), and was thus injured, resulting in the loss of one leg and other injuries. The declaration, in substance, charged that the defendant was negligent, in that it failed to furnish plaintiff a safe brake with which to work; that the same was improperly constructed, out of repair and dangerous, and, being an unusual appliance, unlike the brakes on defendant's cars, acted as a trap and thus occasioned the plaintiff's injuries.

The defendant demurred to the declaration, which demurrer was overruled, and, issue being joined upon defendant's plea of 'not guilty,' the evidence was introduced, and at the conclusion of all the evidence the defendant moved the court for a peremptory instruction to the jury to find for the defendant, which motion being overruled the jury found for the plaintiff a verdict in the sum of $10,000, and answered certain special interrogatories, propounded by the defendant, in accordance with its general finding. The matter is now before me on a motion to set aside this verdict, and to grant to the defendant a new trial.

This case has been ably argued, both orally and by written and printed briefs, and I desire to express to counsel on both sides my appreciation of the care and labor bestowed upon what I conceive to be a remarkably difficult question. It is undoubtedly true that the general rule governing the proof requisite in the case of servants injured by defects in machinery or appliances requires that the plaintiff prove, not only the defect, but that the master either knew of it, or that it had existed for a sufficient length of time to warrant the fair presumption that he should have known of it. In this case we have a curious situation. Under the proof at the trial, there was no defect in this brake. It was carefully inspected immediately after the accident by two competent inspectors, who separately manipulated the brake, and each time, upon releasing it, it responded to the law of gravity, and dropped to its proper position, thus showing that it was in proper working order. On the other hand, we have the equally positive proof that at the time the plaintiff attempted to use this brake, a few minutes before this inspection, it was standing upright, out of its normal position, and presenting a trap which undoubtedly caused the injury to the plaintiff, and there can be no question (to my mind) of contributory negligence on the part of the plaintiff. This fact of the abnormal position of the brake stem being established, let us see whether it is not a warrantable inference to be drawn therefrom that this abnormal position had continued since the last time the brake was manipulated. The position was exactly contrary to the law of gravity, and therefore could not have occurred of itself, or by the motion of the car in being transported from place to place, and therefore may, as I believe, be fairly inferred as having existed since the brake was last set. The train came in as a whole about 3 o'clock a.m., and, according to the testimony of defendant, was inspected between that hour and 6 o'clock a.m. The evidence as to that inspection was before the jury, and I may here say that, had that inspection been of the character of the subsequent inspection, I should have had no hesitation in directing a verdict for the defendant. Had the inspectors, or either of them, been able to assert that the brake on this car was then in normal position, clearly no liability could have attached to the company because of the accident some hours later.

But the evidence as to the character of that inspection was before the jury, and the jury found upon a special interrogatory that the inspection thus and then given was not a proper or sufficient one as a matter of fact. This inspection was made by MessrS.D. D. Tynes and J. B. Carter, who inspected cars arriving from the east at night, and who testified that between the hours of 6 p.m. on October 5, 1905, and 6 a.m. on October 6th, they inspected between 500 and 600 cars, and that the method of inspection was for one man to walk on each side of a train with a torch in his hand. The jury found, and I cannot say they were not justified in finding, that an inspection so made, at night and with such a number of cars to inspect, was not a proper and reasonable inspection. Had the jury answered this special interrogatory otherwise, it would have been as much my duty to direct a verdict for the defendant as it would had the inspectors been able to testify that, at the time of this inspection, the brake was in good condition and normal position.

Of course, the evidence and the special finding of the jury still leaves open one question, namely: Was the train moved, or the brake handled, after the inspection and before the accident? Was it the duty of the plaintiff to throw light upon this question, or is it the duty of the defendant? In the first place, is there any fair inference that the train was moved or touched? It arrived at 3 a.m. October 6, 1905. At 11 a.m. this crew was sent to detach three cars from it, and shift them to the east end of the yard to be unloaded. These cars were undoubtedly found with brakes set, attached to the train that came in at 3 a.m., and there is nothing by way of inference to show that they had been moved or handled, and, if they were so handled, the knowledge of the fact (which would be by way of defense to the defendant) was much more likely to be within the knowledge of the defendant than of the plaintiff. Besides, if any burden rested on the plaintiff as to this question, it would have been to prove a negative, namely, that the car had not been touched, and I do not think the law properly lays that upon him. The main question, as it seems to me, to be determined in this case, is whether the facts attending the injury, as proved in the case, make a prima facie case of negligence against the defendant, and I am frank to say that, under the peculiar circumstances shown here, I am strongly inclined to think they do.

We can I think, as I have before stated, eliminate from the case any possible question as to...