Southern Ry. Co. v. Snyder

• Decision Date: 03 June 1913
• Docket Number: 2,321.
• Parties: SOUTHERN RY. CO. v. SNYDER.
• Court: U.S. Court of Appeals — Sixth Circuit

205 F. 868

SOUTHERN RY. CO. v. SNYDER.

No. 2,321.

United States Court of Appeals, Sixth Circuit.

June 3, 1913

Evidence considered and held not to establish as matter of law that a switchman, injured while coupling cars, was chargeable with contributory negligence.

Jourolmon Welcker & Smith, of Knoxville, Tenn., for plaintiff in error.

Pickle Turner & Kennerly, of Knoxville, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Defendant in error sued for damages for the loss of an arm suffered by him while engaged as foreman of a switching crew in coupling cars in defendant's yards near Knoxville, Tenn. A judgment in his favor was reversed by this court for error in the charge. Southern Railway Co. v. Snyder, 187 F 492, 109 C.C.A. 344. Upon a new trial to a jury, plaintiff again recovered verdict and judgment. On the latter trial, as on the former, the sole ground on which recovery was permitted was that the coupling device on the car in question was so out of repair as to make it necessary for one to go between the cars for purposes of coupling and uncoupling, in violation of the federal safety appliance statutes. The opinion on the former review contains a full statement of the facts then appearing. The evidence on the new trial does not differ therefrom in controlling respects.

It is sufficient for present purposes to say that the testimony showed that the 'Southern' car in question came into defendant's 'Coster Yards,' near Knoxville, with one of its drawheads (and thus the coupling apparatus) gone; that the restoring of this coupler was a 'light repair,' which should regularly have been made in the Coster Yards; that it remained in this condition on the storage tracks of these yards for 25 days, when it was started for Lenoir City, Tenn. (in a train composed entirely of bad-order cars), for repair by a private company at that place, in accordance with defendant's custom to bunch in the Coster Yards, for such destination, cars requiring 'heavy repairs,' until a train load should accumulate; that after starting for Lenoir City the car came into defendant's 'K. & O. Yards,' whereupon a car inspector ordered it out of the train for repair in those yards, for the reason that the light repairs needed should be there made; that the car was placed with several other cars, some loaded and some empty, on track No. 5, which was a transfer track connected with a repair track, and marked to be taken out for repairs. The testimony further showed that while plaintiff and one of his crew were attempting to fasten a chain (which had been put on the end of the Southern car) to the coupler on the car next to it, and toward the engine (which was to the east and connected with from three to eight cars already picked up) operated by plaintiff's switching crew, by means of a pin through the coupler of the latter car, for the purpose of setting the Southern car off the transfer track and on the repair track, plaintiff's hand was caught and crushed between the draft timbers of the Southern car and the drawhead of the adjoining car, by reason of another switching train of about 30 cars coming into collision with the cars on the transfer track to the west of where plaintiff was working. The testimony tended to show that track No. 5 was one of a series of ten or more tracks used for switching and transfer (and to some extent for storage), including one or more repair tracks; that these transfer and switching tracks were used indiscriminately for cars, whether commercially employed or not; that all kinds of cars, loaded, empty, and bad-order, 'heavy repairs and light repairs,' were customarily switched over this track No. 5; and that on track No. 5 at the time the Southern car was placed thereon, and at the time the attempt was being made to remove it therefrom, were cars then and there commercially engaged and movements being actively carried on in the making up and unmaking of trains and the distribution of cars commercially employed.

Defendant's motion for a directed verdict in its favor, made at the close of the testimony, was denied, and this denial presents the only assignment of error relied upon.

1. Despite the fact that at the time of the accident the car was without the coupling device required by the Safety Appliance Acts, defendant contends that:

'The only use being made of the car was its removal from service for the purpose of repair, and that if the car was put into any other use, it was done by (plaintiff) himself in violation of his duty and instructions from the company, and therefore he cannot complain of an injury resulting from a violation of the statute brought about alone by him as a representative of the company.'

In our former opinion we pointed out, in effect, that while a carrier may, without violating the Safety Appliance Acts move empty cars by themselves for the purpose of having them placed in condition to company with those acts, yet, in any movement for the purpose even of repairs, after they have become so defective, such cars must, in order to escape subjection to the act, be wholly excluded from commercial use and from connection with other vehicles commercially employed (St. Louis & S.F.R.R. Co. v. Delk, 158 F. 931, 86 C.C.A. 95, 14 Ann.Cas. 233; United States v. Southern Pacific Ry. Co., 169 F. 407, 409, 94 C.C.A. 629; Chicago Junction Ry. Co. v. King, 169 F. 372, 94 C.C.A. 652); that one of the prominent objects of the federal Safety Appliance Acts is the protection of railroad employes in making up and unmaking...