Southern Ry. Co. v. Gadd

• Decision Date: 06 May 1913
• Docket Number: 2,295.
• Citation: 207 F. 277
• Parties: SOUTHERN RY. CO. v. GADD.
• Court: U.S. Court of Appeals — Sixth Circuit

207 F. 277

SOUTHERN RY. CO. v. GADD.

No. 2,295.

United States Court of Appeals, Sixth Circuit.

May 6, 1913

Caruthers Ewing, of Memphis, Tenn., for plaintiff in error.

John L Stout, of Memphis, Tenn., for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Plaintiff while in the employ of defendant as a fireman on a switch engine belonging to defendant, in its yards at Memphis Tenn., lost his leg by being run over by the switch engine referred to, through the alleged negligence of defendant's engineer operating the same. He brought this action under the Employer's Liability Act of April 22 1908 (35 Stat. 65, c. 149), as amended by the Act of April 5, 1910 (36 Stat. 291, c. 143 (U.S. Comp. St. Supp. 1911, p. 1324)). The injury occurred April 25, 1911. There was trial to a jury, and verdict and judgment for plaintiff.

It is conceded that at the time of the injury the switch engine was engaged in making up a train in interstate commerce. The evidence tended to show that in the course of the switching operations something seemed wrong with the engine; that the night was dark; that the engineer told plaintiff to take his torch and 'started down the was; that plaintiff accordingly took his torch and 'started down the fireman's side'; that before he reached the ground the engineer started again; that plaintiff got back on the engine and told the engineer he could not examine it unless the engine stood still a minute; that the engineer told him to 'wait until we stop again'; that when the engine next stopped plaintiff told the engineer to give him a chance and he would get down and see what the trouble was; that the engineer told him to 'hurry up'; that plaintiff again took his torch and got down on the engineer's side and stepped to the driver, where he could see; that while in that position the engineer started the engine backing; that plaintiff got on the footboard as it passed, and when the engine came to a stop plaintiff walked to the steps, on the engineer's side, to get in the cab; that just as he was making an effort to get on and reaching to seize the handholds, and while in plain view of the engineer, and with his torch in his hand, the engine was suddenly started forward without signal or warning of any kind, and plaintiff thereby jerked and thrown under the tank, the wheels of which ran over his leg. The engineer testified that the 'kick' was made in obedience to a signal from the switchman.

1. The declaration is at least susceptible of a construction, and apparently was intended to allege, that plaintiff mounted one of the steps leading to the cab while the engine was moving slowly forward, and that the 'kicking' occurred after plaintiff was so upon the step. During the closing argument for plaintiff, after motion for directed verdict (later referred to) had been made, the declaration was allowed to be amended so as to allege that the engine was standing still when plaintiff attempted to mount the step, and was started while plaintiff was in the act of taking such step. This action is criticised as an abuse of discretion. The amendment was, however, made to meet the proofs actually introduced, without objection on the ground of variance. Plaintiff had been fully cross-examined upon his statement that the engine was standing still when he attempted to mount the steps, and had been confronted, not only with the declaration, but with a written statement made soon after the accident; both the declaration and statement being claimed to be inconsistent with the testimony that the engine was standing still. In connection with the application for leave to amend, plaintiff's counsel remarked that 'the court knows that the statements of a declaration are the lawyer's statements. ' The only objection to the amendment specifically stated was 'to any statement that would indicate or convey to the jury at all that the statement, which was by leave of the court altered, is not plaintiff's, or that he is not bound by it. ' The amendment was clearly within the discretion of the trial court. Mexican Central Ry. Co. v. Pinckney, 149 U.S. 194, 201, 13 Sup.Ct. 859, 37 L.Ed. 699; Pennsylvania Co. v. Whitney (C.C.A. 6th Circuit) 169 F. 572, 578, 95 C.C.A. 70.

2. In support of the motion for a peremptory instruction (made at the close of the testimony, and, after the argument overruled), defendant invokes the well-settled rule ^[1] that an employer is not an insurer of the safety of its employes, but is bound only to exercise ordinary care to that end, and that the employe assumes the risks of the employment, so far as they are incident to the usual method of work. It is contended that the 'kicking' in question was the usual...