Smith v. Hines

• Decision Date: 18 December 1920
• Citation: 111 A. 761
• Parties: SMITH v. HINES, Director General of Railroads.
• Court: Maine Supreme Court

111 A. 761

SMITH

v. HINES, Director General of Railroads.

Supreme Judicial Court of Maine.

Dec. 18, 1920.

Wilson, J., dissenting.

On Motion from Supreme Judicial Court, Washington County, at Law.

Action by William J. Smith against Walker D. Hines, Director General of Railroads. Verdict for plaintiff, and defendant moves for new trial. Motion overruled.

Argued before CORNISH, C. J., and SPEAR, HANSON, MORRILL, DUNN, DEASY, and WILSON, JJ.

Hinckley & Hinckley, of Portland, for plaintiff.

Charles B. Carter, of Lewiston, and White, Carter & Skelton, of Lewiston, for defendant.

HANSON, J. This action is brought under the federal Employers' Liability Act of April 22, 1908, 35 Stat. 65, c. 149 (U. S. Comp. St. §§ 8657-8665), to recover for injuries while employed by defendant as a freight con ductor. The jury returned a verdict for the plaintiff for $8,454.66, and the case is before the court on the defendant 's general motion for a new trial.

At the time of the injury complained of the plaintiff was in charge of a freight train of 10 or 12 cars, which left Washington Junction on the defendant's railroad on the night of December 4, 1918, its destination being Ayer's junction on the same railroad. The record shows that shortly after leaving Washington junction, a severe snowstorm was encountered, impeding the progress of the train, and that at many of the stations along the road cars were left on account of the intensity of the storm. This condition lasted until the train reached Harrington, when the storm abated. The train proceeded without further changes until reaching Robinson's siding, a few miles west of Ayer's junction, at which siding a car was to be set off for use there. The train then consisted of the engine, 4 cars, and a caboose car. Under the plaintiff's orders an attempt was made to leave a car at the siding; the engine and 1 car, the car to be left as above were separated, leaving 3 cars and the caboose on the main line. The engine with the car to be side-tracked proceeded to the switch, where it was discovered that on account of snow and ice the switch could not be opened. The latter fact was made known to the plaintiff, who ordered the brakeman to restore the car to the train. Having given that order, the plaintiff returned to the caboose, entered and immediately went to the monitor, sat down in a swivel chair with one foot on the iron rail and his train book on his knee, and attempted to change the entry relating to the car above mentioned. The caboose was constructed substantially the same as all such cars used by railroads, with the elevated swivel chair, iron rails for foot rests, and hand rails, and the part above the car roof inclosed on the four sides by glass windows. While so engaged, and sitting as described, the plaintiff was injured by the impact caused by the attempt to recouple the cars uncoupled for the above-named purpose. The plaintiff says the impact broke the glass in front of him, and that he was thrown violently forward and on to the glass, cutting his wrist and head and otherwise injuring him.

The further facts necessary to be recited may be found in the evidence here given. The plaintiff's version of the accident:

"Q. You went into the caboose and went up to the monitor, and sat down,—what were you doing?

"A. When I got up there and sat down, I took my small car book, which is what we have to keep our records of the car movements on, to make up for the auditor. I took out my book and started to rub out the marking, to change the station symbol which we have to show that car was to be left at Ayer's junction instead of Robinson's.

"Q. While you had your book out writing or preparing to write this over, what was the next thing that happened, that you know?

"A. I had taken out my book out of my pocket and had started to change the numbers. I had just got the number slightly erased, when the engine and car crashed into the train.

"Q. Did you hear the crash?

"A. I heard nothing but glass.

"Q. What happened so far as you could see?

"A. I went ahead in this manner (illustrating), right down on the glass, striking my cheek on the back of the center support which goes down on the left side.

"Q. Cut your cheek?

"A. Yes, sir.

"Q. Any other injury?

"A. Yes; cut my arm."

The engineer testifies as follows:

"Q. You couldn't get the switch into a proper position to run in on the siding and leave that car?

"A. No, sir.

"Q. What was the next thing that happened?

"A. The brakeman motioned for me to pull up; and we started back onto the train. I gave the engine a little steam, and shut her off and drifted down onto the 'cars. The first I noticed was Kallenburg running off to one side of the track and giving me a motion to stop. I put the brakes on; and on account of the ice and stuff, why she kept on going right along. We went down and made the hitch."

Walter C. Pattee, rear brakeman, testified:

"Mr. Kallenburg tried to throw the switch, but, owing to the snow and ice around the point, it was impossible to do so. He called to me; and I hollered to Smith, and Smith gave me directions to tell him to couple onto the train and we would set the car out at Ayer junction and leave it there."

"Q. What did you observe?

"A. When they struck, the cars slatted back and forth, so I naturally waited before I attempted to get on the minute they stopped; and just about as they stopped slatting, Mr. Smith opened the door and came out of the caboose. * * *

"Q. Describe to the jury the condition you found the caboose in inside when you went in.

"A. I found the cushions knocked off onto the floor, and the water pails upset, some water slopped onto the floor from the tank in where the wash water is kept, and the cover of that on the floor.

"Q. Was there anything else movable in the caboose?

"A. I should say everything in the caboose that was not securely fastened down was moved."

Carl H. Kallenburg, trainman, testified:

"I received orders to take the car and put it back on the train, and proceed to Ayer junction and leave it there. After I got the order to take the car back to the train, I signaled the engineman to back up.

"Q. What position did you get on the car?

"A. I stood on the rear end of the car, that would be the end next to the cars that were left on the main line. * * *

"Q. You gave the signal and then got on the rear of this car?

"A. Yes, sir.

"Q. What was the next thing that you noticed?

"A. I noticed we were coming back pretty fast.

"Q. What did you do?

"A. I thought we were coming more rapid than I thought we should be, and I gave the stop motion to the engineman.

"Q. What motion did you give?

"A. The stop motion in swinging the arm.

"Q. Did that have any effect?

"A. Not that I could see.

"Q. Then what did you do?

"A. I gave another stop motion.

"Q. Did that have any effect?

"A. Not that I could see.

"Q. Then what did you do?

"A. I gave another stop motion, and I jumped off.

"Q. When you gave the third one, how near was the rear of your car to the car on which the caboose was attached, on that part of the train?

"A. Well, I should think, I can't just exactly say how many feet, but somewhere between 5 or 6 or 10 feet.

"Q. What did you jump off for?

"A. Well, at the speed they were coming back, I thought it would be practically impossible, in the space that remained, to prevent their hitting hard, and I thought of the position I was in, and I jumped.

"Q. You attempted to save yourself? "A. Yes, sir."

The foregoing evidence presents the important facts clearly before the court, and was the subject substantially of the argument of counsel on both sides.

The defendant's counsel in their brief urged:

"(1) That there is no negligence on the part of the defendant railroad corporation.

"(2) That, the case being admittedly one which falls under the federal Employers' Liability Act, plaintiff assumed all risk of the particular danger which caused the damage to him.

"(3) That the damages are excessive."

Upon the first contention they say:

"We do not dispute but what the impact of the two sections of this train in making the hitch was the force which caused the plaintiff to lose his balance while sitting in a careless manner in the seat on the monitor in the cupola of the caboose car, but we do say this impact or force exerted when the hitch was made was in no way a negligent act on the part of the defendant railroad corporation. This is the only thing which the plaintiff complains of in the way of negligence which narrows this case down to one particular issue."

We cannot concur in this view of the evidence. The record shows, and the jury was fully justified in finding, that the speed attained by the engine and sustained until the instant of impact was at least 10 miles an hour; that no effort was made by the engineer to apply the brakes until the moving car was within from 6 to 10 feet of the standing cars; that the impact was violent; every witness, including the engineer, said that the cars came together with a crash. And as to the action of the brakes, a finding that the brakes did respond and act would be justified, for the "shaking and slatting" of the car can be explained upon no other theory. The testimony of Mr. Pettee and the condition of the caboose after the accident sustain such conclusion. Mr. Kallenburg, the trainman who gave the motion to back, and from his position on the car attached to the engine gave three signals to the engineer to stop, and then jumped to save himself from injury, said that the cars to be coupled were then at most but 10 feet apart. The engineer said he saw but one signal to stop, and that was when Kallenburg was on the ground beside the track, and the jury believed Mr. Kallenburg, who was corroborated by the engineer's own statement as to conditions at the moment of impact.

The negligence of defendant's engineer was very apparent. Was the plaintiff negligent? We find nothing in the record to support...