Smith v. Illinois Cent. R. Co.

• Decision Date: 07 November 1912
• Docket Number: 2,236.
• Citation: 200 F. 553
• Parties: SMITH v. ILLINOIS CENT. R. CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

200 F. 553

SMITH v. ILLINOIS CENT. R. CO. et al.

No. 2,236.

United States Court of Appeals, Sixth Circuit.

November 7, 1912

R. O Johnston and Jere Horne, of Memphis, Tenn., for plaintiff in error.

Fitzhugh & Biggs and Thos. A. Evans, all of Memphis, Tenn. (Chas. N Burch, of Memphis, Tenn., of counsel), for defendants in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff's intestate, a locomotive engineer in the employ of the Illinois Central Railroad Company, received fatal injuries in defendants' railroad yard, apparently from being struck by a locomotive engine alleged to have been negligently driven by a hostler in the employ of that company. On the trial of the suit brought therefor, verdict was directed for defendant. The assignments of error involve only the propriety of such direction.

The only human testimony throwing any light upon the circumstances of the accident is that of decedent's fireman, who saw decedent leave the office in the roundhouse walk to the west across the cinder pit track and to and upon track No. 2 (next west of the cinder pit track), and take two or three steps on track No. 2 to the south, in the general direction of his engine, which was standing headed north on track No. 3 (which was next west of track No. 2), and about 100 feet south of where decedent was so seen on track No. 2 and where, so far as the evidence shows, he was last seen by any one before the accident. About five or six minutes later, according to the fireman's estimate (which, however, was not claimed by him to be accurate), he heard decedent 'holler' and call the fireman's name. The latter, on looking down, saw decedent lying between tracks Nos. 2 and 3, 'right at the steps' of his own engine. His right foot was practically cut off. The centers of tracks 2 and 3 were 16 feet apart. Just as decedent cried out, an engine going south on track No. 2, driven by a hostler, passed decedent's engine, stopping 60 or 70 feet beyond. The fireman did not see decedent struck. He heard no whistle or bell on the passing engine, but was busy with his work, and 'wasn't paying any attention to a whistle or bell. ' His attention was called by the noise made by the engine to the fact that it was passing. No other engine was moving in that immediate vicinity at the time of the accident. The speed at which the engine was being driven was not shown. Track No. 2 was straight, and the view to the south was unobstructed from a point 230 feet north of the place of the accident. There was no evidence that decedent's fireman saw the engine on track No. 2 until after decedent was struck.

We think verdict for defendants was properly directed. We pass by the Tennessee statutory precautions act (Shannon's Code of Tennessee, Secs. 1574, 1575), which, indeed plaintiff does not seem to rely upon, as having no application to the yard movement of the engine in question. Rogers v. Cincinnati, N.O. & T.P.R. Co. (C.C.A. 6) 136 F. 573, 574, 69 C.C.A. 321, and cases cited. Whether defendants' liability is to be rested upon common-law principles or upon the Employer's Liability Act, no recovery can be had unless the evidence warrants a verdict that the hostler's negligence was a proximate cause of the accident. There is no evidence of such negligence, unless it can be inferred from the fact or manner of the accident itself. That the unfortunate engineer was struck by the engine in question is a natural inference. But beyond this the meager testimony leaves the circumstances and immediate cause of the accident shrouded in mystery. Whatever the fact may have been, there was no evidence that decedent was struck by the pilot beam, or, indeed, by any part of the engine, or of any injury to decedent, except as his foot was cut off, presumably by the wheels. Whether he was overtaken when walking down the track, or whether, after walking between the tracks, he tried to cross in front of the engine and miscalculated the distance, or caught his foot, or whether he...