Southern Ry. Co. v. Rogers

• Decision Date: 07 May 1912
• Docket Number: 2,202.
• Citation: 196 F. 286
• Parties: SOUTHERN RY. CO. v. ROGERS.
• Court: U.S. Court of Appeals — Sixth Circuit

196 F. 286

SOUTHERN RY. CO. v. ROGERS.

No. 2,202.

United States Court of Appeals, Sixth Circuit.

May 7, 1912

In an action by a switchman against a railroad for injuries, the question of plaintiff's contributory negligence held one for the jury.

In October, 1908, Rogers, who, at that time, was 19 years old and was employed as a switchman in the Chattanooga yards of the Railway Company, was struck by a passing train, and he brought this action for damages from the resulting injury. The issues were submitted to a jury which rendered a verdict for him, and the Railway Company brings this writ of error to review the judgment entered on the verdict. It complains because its motion for a directed verdict was not granted and because of errors during the trial, and in the charge.

In the yards were two parallel tracks which were about 13 feet apart, from center to center, and which would thus, as counsel agree, furnish a clear space of about 6 feet between the sides of freight cars passing at the same time upon the two tracks. One of these was called the pocket track, and was used to transfer trains from one main line to another. The other was a lead track, and from it, at regular intervals successive switch tracks, 1, 2, 3, 4, etc., led in a direction away from the pocket track. The switches connecting the lead track and these switch tracks were thrown by levers carried on switch stands and located between the lead and pocket tracks. These stands were of the low type, so that it was necessary to stoop over to work the lever. Rogers' testimony tended to show that the stand for No. 3 switch was not located centrally between the tracks, but was nearer to the pocket track and was about three feet from its rail; that the switch lever was about two feet long, and, when extended horizontally at right angles, would practically reach the line of the side of the cars on the pocket track; that while he was quite thoroughly familiar with the location, having worked in these yards for a year or more, he had never noticed the unusual proximity of this switch stand to the pocket track, nor had he ever been warned or instructed regarding any peculiar danger at this point; that always until he made measurements after the accident, he had supposed this stand to be midway between the tracks, as the other switch stands were; that his train was to enter switch No. 3, and he came hurriedly along between the two tracks, with the lead track on his left, setting some of the switches as he passed, and hearing his train, as he supposed, coming just behind him on the lead track; that he then threw switch No. 3 to open its switch track, and as he was in the act of stooping over, operating the switch in the usual way, he was struck by the first car of a freight train which was being pushed backward along the pocket track, this being the train he had mistakenly supposed was upon the lead track; and that his injuries were received in this manner. The only negligence charged against the company and submitted to the jury was that it did not provide Rogers with a safe place to work, in that this switch stand was placed dangerously close to the pocket track.

T. H. Cooke (Cooke, Swaney & Hope, on the brief), for plaintiff in error.

J. J. Lynch (Cameron & Tatum and Spears, Lynch, Spears & Phillips, on the brief), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

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

1. The motion for directed verdict was rested upon the absence of negligence by defendant, and the presence of contributory negligence and assumption of the risk by plaintiff. These subjects, while distinct, yet in this case so far involve the same circumstances and the proper conclusions from those circumstances that they can properly be considered collectively. It is urged that a switchyard is necessarily a place of danger; that switches cannot be so located as to make their operation by switchmen always safe; that there is nothing to show more danger in this situation than always must exist where a switch stand is between two tracks which are separated by the distance standard in switchyards; that whatever danger there was resulting from the location of this stand was obvious to any one familiar with the yard as Rogers was, so that he assumed the risk; and that his failure to look over his shoulder back along one of the two tracks was negligence, and contributed to the result.

It is self-evident that a switchyard is a place of danger, and that where there is a switch stand between tracks eight feet apart, rail to rail, and the switch, perhaps, must be worked while a train is passing on the adjacent track, the switchman is exposed to some peril. It is also obvious that this situation makes it imperative for the company to minimize, as far as reasonably possible, this necessary danger. (We speak of this as necessary danger, because it is not charged by the pleadings or the testimony that the two tracks were unnecessarily near together, and on this record it must be assumed that the space of eight feet, rail to rail, is a proper and sufficient space.) It is equally clear that, while Rogers assumed the risk of that danger which was obvious, he did not assume those risks which a reasonably prudent man in his situation would not have observed or foreseen; and that, while he was bound to watch out for his own safety, yet he was not bound to watch against a peril which he did not anticipate, and was not required to anticipate. It is for these reasons we have said that the three questions are governed by a common consideration-- viz., the character of the danger-- and, in the end, reduce themselves to the one double question whether this switch stand was located in a place of unnecessary and obvious danger; for, unless the danger was unnecessarily created by defendant, and was not obvious to plaintiff, there could be no recovery.

The case was presented to this court by the company upon the theory that there was space enough for Rogers to have operated the lever safely, but that he unnecessarily so placed himself that, by the act of stooping to the lever, he threw part of his body back into the danger zone, and so caused himself to be struck. More specifically, it is urged that he stood between the pocket track and the end of the lever, extended horizontally at right angles to the tracks, so that, when he stooped down, his body extended back two or three feet beyond the end of the lever, and it is said that in any possible way in which a switch stand can be placed between two tracks eight feet apart the operator may thus throw his body out over, or dangerously near, the other track; thus leading to the conclusion of no fault by the company or of an affirmative fault by the switchman, and to the conclusion that this case would be ruled by Randall v. B. & O.R. Co., 109 U.S. 478, 3 Sup.Ct. 322, 27 L.Ed. 1003.

We do not find it necessary to adopt this specific theory of fact in connection with the motion to instruct a verdict, because it is not the only one which plaintiff's testimony will support. His testimony is at least as consistent with the theory that he operated this lever in the safest possible manner, viz., by standing, not...