Rio Grande Southern R. Co. v. Campbell

• Decision Date: 06 July 1908
• Citation: 44 Colo. 1,96 P. 986
• Parties: RIO GRANDE SOUTHERN R. CO. v. CAMPBELL.
• Court: Colorado Supreme Court

96 P. 986

44 Colo. 1

RIO GRANDE SOUTHERN R. CO. v. CAMPBELL.

Supreme Court of Colorado

July 6, 1908

Appeal from District Court, La Plata County; Jas. L. Russell, Judge.

Action by Samuel M. Campbell against the Rio Grande Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Wolcott, Vaile & Waterman and Elroy N. Clark (Wm. W Field, of counsel), for appellant.

Stuart & Murray and Chas. A. Johnson, for appellee.

GABBERT J.

Appellee was employed by the appellant in the capacity of brakeman on a freight train. In coupling cars he was injured, and brought suit against the railroad company to recover damages, basing his right thereto upon the ground that his injury was caused through the negligence of the appellant. The negligence charged was: (1) That the defendant was engaged in interstate commerce, and did not comply with the act of Congress which required its trains and locomotives to be equipped with certain safety appliances, in that its locomotive was not equipped with a power driving wheel brake, and the cars which plaintiff attempted to couple were not equipped with automatic couplers coupling by impact, so that such cars could be coupled or uncoupled without the necessity of the person engaged in doing this work going between the cars. (2) What may be designated 'common-law negligence,' in that the coupling appliances on the cars which plaintiff attempted to couple were defective and the engine operating the train upon which he was employed and injured was old worn, and weak, and not of sufficient power and strength to properly handle the train by the exercise of steady power. The defects in the coupling appliances alleged were that the nuts intended to hold the drawbars were loose or lost, so that when the drawheads on the respective cars which plaintiff attempted to couple came together the drawbars bent down, and thereby allowed the ends of the cars to come together whereby plaintiff was caught and injured. The defects in the locomotive as charged were, in effect, that its parts were worn and imperfect, so that it could not be moved with a steady and uniform degree of speed, with the result that it did not move steadily, and could not be safely controlled by the engineer, and that the wheels thereof were greatly worn and cupped, so that at times they would slip upon the rails, and at other times seize them, and thus instantly increase the speed of the train which it was attempting to handle, and that these defects caused the cars which plaintiff was attempting to couple to come together with great force, by means of which the drawheads and couplings of such cars were turned down, and plaintiff was crushed. The answer, in effect, denied that the defendant was engaged in interstate commerce in moving the train upon which the plaintiff was employed; denied that it was guilty of the other acts of negligence charged; and pleaded contributory negligence on behalf of the plaintiff. The trial of the case resulted in a verdict in favor of plaintiff for $7,000, upon which a judgment was entered. From this judgment, the defendant appeals.

The train upon which plaintiff was employed operated between Rico and Durango. On its way to Durango, at Porter Station, it picked up car No. 1050, loaded with coal. Appellee made the couplings which brought this car into the train, and, according to his own testimony, inspected the car and found the coupling in good order, so far as it was possible for him to ascertain. Beyond Porter Station car No. 1925, loaded with brick, was attached to the train. Appellee also coupled this car into the train, and stated that he inspected the coupling apparatus, and discovered nothing wrong about it. The train then proceeded towards Durango, and, when it reached the smelters near that city, halted to drop out several cars. To accomplish this plaintiff uncoupled that portion of the train which contained these cars, and No. 1925 from 1050. The train crew then proceeded to place the cars intended to be left at the smelters on the smelter siding, where they were uncoupled from 1925, so that 1925 was the rear car of the front, or moving, end of the train, and 1050 the front car of the part left standing. Plaintiff took a position on the rear of 1925, and the train was backed out on the main track to couple on the part left standing. This part was on a straight track, the part moving being upon a curve and upgrade as it approached 1050. The appellee signaled for a coupling, and, when the cars came together, the drawheads were bent downward, whereby the cars came sufficiently close to each other to catch his right leg between the dead woods, with the result that his right leg was broken, and he was otherwise injured.

The engineer in charge of the locomotive operating the train was called as a witness on the part of the plaintiff. From his testimony it appears that the engine was worn and the driving wheels cupped to some extent, but that this wear and condition did not affect its efficiency in handling the train in question. He says, in substance, that the engine was only backing three cars; that it moved all right when backing up for the coupling, moved steadily, and was under perfect control. Plaintiff testifies that in making the coupling the locomotive did not bring the cars together with any extra force, but in the way any locomotive would; that the movement of the locomotive was a continuous one; that there was not exactly what might be called a jar, but a jerk, but that the jerk was not sufficient to cause the drawheads to turn down had the nuts been in place. On behalf of the defendant, the fireman testified, in substance, that in making the coupling the engine moved steadily, and that taking into consideration the load she was moving and the curve and grade over which she was passing, although her wheels were cupped to some extent, they would not slip. This is all the testimony touching the alleged defects of the locomotive.

With respect to the coupling apparatus, plaintiff testifies, in substance, that the link was in 1925--the forward car; that he entered the link in the drawhead of 1050; that prior to attempting to couple the cars he made an effort, so far as he had an opportunity, to observe what the condition of the couplers was, but did not discover there was anything wrong with either of them, and that the drawheads apparently stood all right. He assisted in picking up both these cars, and attaching them to the train, and says, if the drawheads were not snug against the springboards, he did not observe it. On behalf of plaintiff, Fred Weller testified, in substance, that he observed the accident to plaintiff; that he ran over to the train, and then and there made an examination of the drawheads, end sills and drawstems of cars 1050 and 1925; that on one car the nut of the drawstem was partially over the keyhole, and on the other clear past; that one nut was about an inch and the other about two or three inches from the proper place; and that there were no keys behind the nuts on either car. He further testifies that he made some repairs on car 1050 that evening, and found that the drawstem would slide back and forth because the nut was not in its proper position by about an inch and a half; that he put in a new drawstem, key and washer, and spiked up the splinters in the deadwood or springboard, and left the car in a good condition to go on the road.

Witness Gratz, on behalf of the defendant, testified that he examined the cars between which plaintiff had been injured and found that both drawheads were turned down and the deadwood split; that the following morning they were placed on the rip track for repairs; that he got under the cars to examine the condition of the drawstems, washers, and keys, and found all in place; that the nuts were drawn so tight that it took two men with a 30-inch wrench to loosen them; and that these cars were both repaired under his direction.

Witness Joe Weller, father of the witness Fred Weller, testified that, after plaintiff was injured, he made a general inspection of the drawstems, nuts, bolts, and keys, and found everything in proper place, snug and tight, except for the bent position of the drawstems, and that on the next day, while the cars were on the rip track, he made a further examination and found the cars in the same condition they were the evening before, and that no repairs had been made upon either of them until they came on the rip track. He further positively testifies that the two cars were repaired the next day after plaintiff was injured by Fred Weller and Mike Morris.

It further appears from the records kept at the shop of the railroad company that these repairs were made at the time testified by the witness Joe Weller, and that no time was claimed by Fred Weller for repairs made the evening of the 8th, as claimed by him. The engineer, fireman, conductor, and another witness testify that they went to the point where the plaintiff was injured, and that they did not see Fred Weller make any inspection of the cars while they were there. The testimony is undisputed that the drawbars were bent down in the deadwood of each car, which was split by this means. With the exception of Fred Weller, the witnesses say the deadwoods were so badly damaged that new ones had to be, and were, put in. The testimony discloses that both drawheads were exactly the same height from the track. Referring further to the testimony of the plaintiff on the subject of the drawheads turning down, he says: 'One cause is the link not being entered might cause them to turn down. Another reason is too much force, that they have to give way. The next cause is that this nut, right there, might not be tight, so as...