Riley v. Louisville & N.R. Co.

• Decision Date: 14 December 1904
• Docket Number: 1,289.
• Citation: 133 F. 904
• Parties: RILEY v. LOUISVILLE & N.R. CO.
• Court: U.S. Court of Appeals — Sixth Circuit

133 F. 904

RILEY v. LOUISVILLE & N.R. CO.

No. 1,289.

United States Court of Appeals, Sixth Circuit.

December 14, 1904

W. H Washington, for plaintiff in error.

Percy D. Maddin and John W. Judd (Charles N. Burch and J. B Keetle, of counsel), for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This suit was brought by W. C. Riley, plaintiff in error, against the Louisville & Nashville Railroad Company, to recover damages for injuries sustained by him while at work, on the night of September 25, 1898, in the yards of the company in East Nashville, Tenn., as an extra switchman. The accident occurred while Riley, carrying a lantern, was walking ahead of a moving car for the purpose of changing a link. At the point where there was a frog, while so engaged, Riley's foot was caught and held in a hole or excavation existing under the rail of the frog, so that the moving car ran upon him and crushed his foot.

Riley's claims, set out in his two causes of action, were, first that the hole was a defect in the roadbed, of which he had no knowledge, and for the results of which the company, having failed to provide him a reasonably safe place in which to work, was responsible; and, second, that he was a green hand unfamiliar with the locality, unaware of the hole, which was dangerous to one engaged in switching cars there, and that the company, having failed to warn him of its existence, was liable. The defense of the company was that the hole complained of was not a defect in the roadbed, negligently permitted to exist, but an excavation purposely made and maintained under the movable rail of the spring frog, and that the plaintiff, who was not a green hand, knew or should have known of its existence, for it was plainly observable, and his duties required him to work over it, so that, if the excavation was dangerous, the risk incident to working over it was one he assumed.

At the conclusion of the testimony, the court directed a verdict for the defendant. This action is assigned as error.

There are no disputed questions at law. The questions are those of fact-- of the disputed questions of law. The court below took the view that the testimony in support of the company's claim was so conclusive that if the case had gone to the jury, and a verdict been returned for the plaintiff, it would have been his duty, in the exercise of a sound judicial discretion, to set it aside. Holding this opinion, he could not do otherwise than direct a verdict for the defendant. Patton v. Texas, etc., Ry. Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361. The question for us to determine is whether the court was correct in the view taken. The plaintiff in error insists there was such a conflict in the testimony that the case should have been submitted to the jury.

The testimony of the company tended to show that the excavation into which Riley stepped was one under the rails of a spring rail frog. A spring rail frog is one with a movable rail which is forced out by the flange of the running wheel, and, when it has passed, is pushed back in place by the spring of the frog. If the spring rail fails to return to its proper place, the next car passing over it is liable to be derailed. For this reason, it is necessary to guard against obstructions to the free movement of the spring rail. Accordingly an excavation is made between the ties under the frog, where the spring rail is movable, so that coal, sand, or other possible obstructions falling between the rails of the frog may not lodge there, but pass through. Such excavation is trough-like in shape, running back from the point of the frog 8 or 10 feet, and extending outside the rail 8 or 10 inches, and is plainly observable. A trackman keeps this excavation cleaned out. There were 25 or 30 of these spring rail frogs in the Nashville yards, where Riley worked. Riley was 24 years old when hurt. He had been working in the Nashville yards for 5 or 6 months as extra switchman. He was intelligent and skillful. Although he worked at night, his employment covered the summer, and there were several hours of daylight each day in which to observe the condition of the track and frogs where he worked. The defendant's witnesses who testified to the above facts were 10 in number-- the roadmaster, the yardmaster, the trackman who kept the excavation cleaned out, the members of the crew who worked with Riley, and other switchmen, who were...