Southern Ry. Co. v. Miller
| Decision Date | 26 April 1920 |
| Docket Number | 1754. |
| Citation | 267 F. 376 |
| Parties | SOUTHERN RY. CO. v. MILLER. [1] |
| Court | U.S. Court of Appeals — Fourth Circuit |
Thomas B. Gay, of Richmond, Va. (Munford, Hunton, Williams & Anderson, of Richmond, Va., on the brief), for plaintiff in error.
Robert H. Talley and D. C. O'Flaherty, both of Richmond, Va for defendant in error.
Before KNAPP and WOODS, Circuit Judges, and WATKINS, District Judge.
The suit grows out of an accident which happened in this way:
In July, 1917, plaintiff in error, defendant below, was constructing a passing track along the easterly side of its main tracks near Gilbert's Station, Va. The passing track crossed a small stream, which had to be bridged, and this made it necessary to drive a number of piles. The pile driver was mounted on the end of a flat car, which was pushed in from the north on the passing track to the proper point for driving the piles. The apparatus consisted of two metal leads about 42 feet high, between which the piles were hoisted and held in position for driving. The leads could be so moved as to allow piles to be driven at any point on the circumference of a circle around the end of the car. A steel ladder some 10 or 12 inches wide, with rungs about 12 inches apart, extended along the outside of the east lead nearly to its top. In operating the pile driver it was necessary for a man to climb the ladder and place an iron cap or bell on the top of a pile, after it was put in position, so that the heavy weight used for driving, when set in motion, would strike the bell and drive the pile down without injury. Miller plaintiff's intestate, was engaged in this work when he met his death in the manner presently to be described. He was about 36, a man of intelligence, had been a member of defendant's 'bridge gang' for several years, held the position of assistant foreman, and was familiar with the duties of his employment. He was married in December, 1912 but lived with his wife only 3 or 4 months; a child born the following September he had never seen; and at no time had he contributed in any way to the support of wife or child.
The movement of trains on this portion of defendant's road was controlled by an electric block signal system, which had been installed a few months before. In the operation of this system an electric current of some 4,400 volts was transmitted over three uninsulated wires supported by porcelain holders mounted on wooden cross arms affixed to chestnut poles about 200 feet apart. As nearly as we can make out, the line of poles at the point where the accident occurred was east of and a little less than 10 feet from the eastern rail of the passing track; the nearest wire was 23 feet and more above, that is, higher than this rail, and 31 feet from the ground. This signal system is the same as that used by many of the leading railroads of the country; it was not claimed to be defective from improper construction or want of repair.
On the day in question two piles had been safely driven, one after the other, at points further away from the electric wires. The leads were then turned or moved to the proper position for driving a third, nearer the wires, and secured in that position. The third pile was thereupon hoisted between the leads, and Miller went up the ladder, as he had twice before that morning, to put the bell on top of the pile. Some of the men observed him in the act of placing the bell, and just after he had done so, and started down, and one witness testifies that he called out, 'All right,' or something to that effect. Then for a brief space it appears that no one was looking, and precisely what happened can only be conjectured. A few moments later a peculiar sound was heard, and Miller was seen with his feet on the ladder and the back of his head on the live wire, his body rigid and leaning from the ladder at an angle of about 45 degrees. He died almost immediately.
Witnesses who saw him differ in their estimates of Miller's distance from the wire when he was putting the bell on the pile; one or more of them saying that it was about 2 1/2 feet. It would seem quite as important to know how much clear room he had in which to do his work. Bibb, the foreman, a witness for defendant, says that the ladder was 4 feet 8 inches from the nearest wire, and evidently the distance could not have been greater. Indeed, the fact that Miller's body, in the position and at the angle described, reached from ladder to wire, indicates that they were even closer together. At any rate the margin of safety, so to speak, did not exceed, and was perhaps considerably less, than 4 2/3 feet. To work in a space of such narrow limits was undoubtedly dangerous.
The negligence set up in the declaration, repeated in various forms in the several counts, is in substance that defendant failed to provide Miller with a reasonably safe place for doing his work, in that it required him to work in close proximity to a highly charged wire, contact with which would be fatal, without insulating the wire at that point or otherwise protecting him from danger, and plaintiff asserts that such protection should have been afforded in one or another of the ways mentioned in testimony.
The fact that Miller was put to work in a dangerous place did not of itself show or permit the inference that defendant was negligent. To maintain the suit it was therefore incumbent upon plaintiff to point out some feasible means which defendant might have employed, and reasonably ought to have employed, for safeguarding its employe in the performance of a hazardous task; and the immediate question is whether the evidence in that regard was sufficient to raise an issue of fact for submission to the jury. It is said in the first place, as must be obvious, that these wires might have been rendered harmless by turning off the electric current during the time needed for driving the piles. But this 'would result in the suspension of the automatic block system' on that section of the road, as a witness for plaintiff testified, and thus prevent or interrupt the movement of trains. In view of the consequences of stopping the operation of the signal system, we are clearly of opinion, without discussing the point, that defendant was not required to neutralize the wires by cutting off the current, and that it is not chargeable with negligence for failure to adopt this means of protection.
Again it is said that the wires could have been temporarily moved to a greater distance...
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