Southern Ry. Co. v. Snyder

• Decision Date: 03 May 1911
• Docket Number: 2,055.
• Citation: 187 F. 492
• Parties: SOUTHERN RY. CO. v. SNYDER.
• Court: U.S. Court of Appeals — Sixth Circuit

187 F. 492

SOUTHERN RY. CO. v. SNYDER.

No. 2,055.

United States Court of Appeals, Sixth Circuit.

May 3, 1911

The defendant in error (plaintiff below) recovered verdict and judgment against plaintiff in error (defendant below) for damages for the loss of an arm, incurred by plaintiff while engaged as yard conductor in coupling cars in the west part of defendant's 'K. & O. yards,' so-called, near Knoxville, Tenn. The 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in alleged violation of the federal safety appliance act; a count charging common-law negligence having been withdrawn from the consideration of the jury. The testimony, which for the most part was undisputed, showed this state of facts:

The defendant is an interstate carrier by railroad, operating in Tennessee, North Carolina, and other states. During the period in which the plaintiff was hurt defendant did not classify its freight cars, but used them indiscriminately in interstate and intrastate traffic. The car in question--Southern Railway box car No. 14456-- was hauled empty from Yalu, Tenn., to defendant's 'Coster yards,' about two miles north of Knoxville, on September 17, 1907, as part of defendant's freight train which ran from Asheville, N.C to Knoxville, Tenn. The ultimate destination of the car does not appear, except to the extent possibly inferable from its next movement after its repair, viz., that it left Knoxville loaded, on October 20th or 21st, on a freight train operating between Knoxville, Tenn., and Asheville, N.C. The car was inspected on the day of its arrival at the Coster yards, and the coupler or drawhead found to be gone. The restoring of the coupler was a 'light repair.' These Coster yards had extensive shops, employing at least 1,000 men. Some repairs, especially light repairs, were also done there outside the shops; at least 50 repairmen being employed in the yards. No 'bad order' card was put on the car but it may have been marked as needing repairs. It remained in this condition on the storage tracks in the Coster yards until October 12th (a period of 25 days), when it was started for Lenoir City, Tenn., about 25 miles from Knoxville, 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,' 'when sills were gone from under the cars and things of that kind,' until a train load should accumulate. There is a conflict in the testimony as to whether the cars were sent in a train made up wholly of bad order cars destined for Lenoir City, or whether they were put in a regular train running to Chattanooga and Cleveland. After starting on this trip to Lenoir City, the car came into the K. & O. yards (about three miles from the Coster yards) 'chained up and next to the engine. ' The car inspector there ordered the car out of the train for repair in the K. & O. yards, for the reason that only light repairs were needed; 12 to 15 repairmen being kept in these yards. It was placed with 7 or 8 other cars, some loaded and some empty, on the east end of track No. 5, which was a transfer track connected with a repair track, and was marked to be taken out for repairs. On the west end of the transfer track were other cars, some loaded and some empty, marked for switching according to their destinations, which, there was testimony tending to show, were both within and without the state. It does not appear whether any of the cars on the east and of thetransfer track, which had to be moved in switching out the Southern car, were at the time actually engaged in interstate traffic. At the K. & O. yards were 11 switch tracks; two (Nos. 5 and 6) being transfer tracks, the others being used for storage of cars and sometimes of trains, cars being switched from these tracks to the Coster yards, where trains were made up for points both within and without the state, trains for the Chattanooga division of the Southern Railway leaving from the K. & O. yards. While plaintiff and one of his crew were attempting to fasten the chain on the end of the Southern car to the coupler of the car next to it, and toward the engine, by means of a pin through the coupler of the latter car, for the purpose of setting the Southern car off the transfer track for placing it 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 coming into collision with the cars on the transfer track to the west of where plaintiff was working.

At the close of the evidence defendant moved for peremptory instruction in its favor, which was denied; error being assigned upon this refusal. The jury were instructed that if the Southern car in question was 'a car which was generally and ordinarily used in interstate traffic, or in connection with cars or equipment used in interstate traffic by the Southern Railway, then it was a car coming within the terms of the statute; and this would be shown by proof satisfying you by a preponderance of the evidence that this car was used interchangeably for local and interstate traffic. If it was a car used interchangeably for those two purposes, it would be a car used in interstate traffic within the law that I have stated. In order that a car might not be subject to the safety appliance act, as one not used in interstate traffic, it would have to be a car which the railroad had set apart solely and specifically for use in local traffic; that is, for traffic within the state, to be used for that purpose alone, and not for the purpose of moving interstate traffic, or of being generally or ordinarily used in connection with the movement of interstate traffic. ' The jury was instructed, however, that if the car 'had been withdrawn from general use, and was being moved to the nearest repair shop in the exercise of the utmost diligence after the defect was discovered or could have been discovered, then it would not be subject to the act'; but that if the 'defect was discovered, or could have been discovered at the Coster yards, and * * * could have been repaired with due diligence at the Coster yards, and * * * was moved from the Coster yards and started on this trip to Lenoir City, and put into use that way, that then it became subject to the safety appliance statutes.'

Error is assigned upon the instructions referred to, as well as upon the refusal of the court to instruct, in effect, that the car was not subject to the safety appliance statute, and plaintiff not relieved from the assumption of risk, provided its movement from the transfer track to the repair track was necessary in taking it out of service for the purpose of repairing it; that the fact that the railroad company had previously failed to put the car out of service, when it might have been done with due diligence, would not bring the movement of the car under the safety appliance act and relieve the plaintiff of the assumption of risk; that the movement of the car from the Coster yards to the repair shops at Lenoir City, for the purpose of having it put in repair and equipped in accordance with the requirements of the safety appliance statute, did not violate that statute, provided defendant did not, in connection with such movement, also move in interstate commerce other cars or commerce; and that if plaintiff could reasonably have placed the car 'on the repair track, without connecting the car with or moving it in connection with other cars commercially employed, it was his duty to do so, and if he failed to do so, and was injured thereby, he cannot complain, nor be relieved of the assumption of risks incident thereto. ' The constitutionality of the amendment of 1903 to the safety appliance act, as construed by the court, was also challenged by appropriate exceptions and assignments.

L. D. Smith, Leon Jourolmon, and W. L. Welcker, for plaintiff in error.

G. W. Pickle, W. R. Turner, and W. T. Kennerly, for defendant in error.

Before SEVERENS, WARRINGTON, and KNAPPEN, Circuit Judges.

KNAPPEN Circuit Judge (after stating the facts as above).

The record presents the question whether the federal safety appliance statutes (Act March 2, 1893, c. 196, 27 Stat. 531 (U.S. Comp. St. 1901, p. 3174), and Act March 2, 1903, c. 976, 32 Stat. 943 (U.S. Comp. St. Supp. 1909, p. 1144)) apply to all cars of an interstate carrier by railroad which makes no classification of its cars between interstate and intrastate traffic, but uses such cars without discrimination and interchangeably in both classes of traffic, and without reference to whether a car is or is not, at the time of the alleged violation, actually engaged in or used in connection with an interstate movement of traffic, and whether the act, if construed to so apply, is constitutional.

The question now presented has been passed upon in but few cases. The nearest approach to a decision of the question which has been made by the Supreme Court is found in Johnson v. Southern Pacific Ry. Co., 196 U.S. 1, 22, 25 Sup.Ct. 158, 49 L.Ed. 363, where it was held that a dining car regularly engaged in interstate traffic does not cease to be so engaged when waiting for a train to make the next or return trip; the court saying (through Chief Justice Fuller):

'It (the car) was being regularly used in the

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