St. Louis, K.C. & C.R. Co. v. Conway

• Decision Date: 02 September 1907
• Docket Number: 2,546.
• Citation: 156 F. 234
• Parties: ST. LOUIS, K.C. & C.R. CO. v. CONWAY.
• Court: U.S. Court of Appeals — Eighth Circuit

156 F. 234

ST. LOUIS, K.C. & C.R. CO. v. CONWAY.

No. 2,546.

United States Court of Appeals, Eighth Circuit.

September 2, 1907

Plaintiff an experienced brakeman, who was directed by the conductor of a train to take charge of two engines coupled together, which were to proceed to a siding for switching purposes, at about the time the engines were given the signal to start, ran by them and jumped upon the pilot of the front engine, from which he fell, or was thrown, receiving an injury. The pilot was provided with no place for a person to stand or where he could stand safely, and was not intended to be used for that purpose, but the engines were provided with steps with handholds, on which plaintiff could have safely stood, or by means of which he could have entered the cab, and he passed by such steps in going to the pilot. Held, that the railroad company was not chargeable with negligence in not equipping the pilot with a footboard and grab irons to render it a safe place for plaintiff to ride, nor was it liable for his injury, which was caused, or at least contributed to, by his own negligence in unnecessarily assuming a dangerous position.

W. F Evans, for plaintiff in error.

Jesse H. Schaper (George W. Lubke and George W. Lubke, Jr., on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

The defendant in error recovered judgment in the sum of $6,000 against the plaintiff in error, a railroad corporation. As the chief insistence of the plaintiff in error is that the trial court erred in refusing its request for a directed verdict, a review of the case as presented by the evidence is necessary.

At the time of the injury, the defendant in error was employed as head brakeman on a construction train used in building a railroad for the plaintiff in error between St. Louis and Kansas City, Mo. He had been so employed for several months prior to the injury hereafter described, and was a brakeman of long experience, familiar with the duties incident to his employment. On the morning he received his injury, the construction train was at Bowen, three miles west of the town of Windsor, in Henry county, Mo., a station on said road. The train consisted of a large number of freight cars and two engines coupled together. The front engine is known in the evidence as No. 623; the rear engine as No. 462. From Bowen to Windsor the train was pushed by said engines. The ground was very wet and muddy, and, as the track was new and unsettled, the upward and downward motion of the cars caused them to jump out of the knuckle of the automatic couplers whereby the cars would become detached. This became so annoying, occasioning frequent stops, that the conductor in charge sent to the caboose for links and pins, used on the drawheads, and substituted them in place of the automatic couplers, which change remedied the trouble. The defendant in error was present when this substitution of the link and pin couplings was made, and was fully cognizant thereof. When the train arrived at Windsor, the defendant in error detached the locomotives and tenders from the train of cars, for the purpose of running the engines about 300 feet to a siding for the purpose of shifting cars. The direction and control of this movement of the engines were, as customary, by the conductor committed to the charge of the defendant in error, as the head brakeman. He undertook to ride on the pilot to the point of destination, from which he fell. His left foot was so crushed by being run over by the pony wheel of the engine as, in the judgment of the surgeon, to render its amputation necessary.

The negligence imputed by the petition to the plaintiff in error as grounds for recovery of damages is: (1) The failure of the plaintiff in error to promulgate rules 'for the accomplishment of the work of coupling said engine No. 623 onto said cars and switching the latter from the main track to and upon said side track by means of said two engines coupled together by means of said link and pin and adjusted in the manner aforesaid, by which system of signals and rules said various servants and employes of defendant should be governed, and by the use of which one employe could protect and guard himself against the action of another.' (2) That the act of connecting engine 462 with 623 by means of said link and pin, and in causing said engine 462 to suddenly move forward and violently strike engine 623 'while the same was also moving forward, while the defendant in error was so situated upon the pilot. ' And further was the plaintiff in error guilty of negligence 'in causing said engines while so connected to suddenly move forward,' while the defendant in error was so situated on said pilot. (3) In failing to provide and furnish the defendant in error at the time and place with reasonably safe appliances at and about said engine No. 623, such as grab iron and footboard, for the defendant in error to do his work.

The answer tendered the general issue of nonliability, and pleaded contributory negligence. One of the defenses made under the general issue was that the train of cars and engines in question, at the time of the accident, were being used by an independent contractor doing the construction work of said road, and that the defendant in error was at said time in the employ of said contractor, and not that of the railroad company. And error is assigned of the action of the trial court in refusing to submit to the jury the question of fact as to whether or not the defendant in error was so in the employ of said contractor; the contention being that there was sufficient evidence to carry the question to the jury. In view, however, of the conclusion reached by us on the merits of the claim for damages, it is not deemed essential to consider this assignment of error.

Turning to the acts of imputed negligence, we are unable to perceive the legal basis for the claim that the railroad company failed of its duty to this employe in not prescribing signals and rules for the movement, at the time and place, of the engines when their movement was turned over to him. He knew that no such rule had been promulgated, and the evidence fails to disclose that any occasion had ever arisen to render such prescription important, much less necessary. As the company was using in its regular operation of its trains the required automatic coupler, it could not be expected that it should anticipate the emergency which required, for the instant, the substitution of the link and pin. From the very necessities of the case, when such unusual and unexpected emergency arises out on the road, there must be left to the best judgment of experienced operatives the method of overcoming the obstacle. Rules and regulations of a railroad company are the offspring of experience, formulated as new conditions dictate their expediency or necessity. If, as the testimony of the defendant in error himself shows, it was customary for the front engineer, when two engines coupled together were to make the movement in question, to apply the motive power, why was it necessary for the railroad management to prescribe a rule to that effect? And if, perchance, the two engineers receiving the signal for a forward movement, the rear engineer should on a particular occasion let on steam to put his engine in motion, why should the company make a rule about it to protect an employe like the defendant perched upon the pilot, where he had no right to be, and where the company in constructing it did not intend or contemplate he should be? What this complainant stood in need of to support his action was that there should have been such a rule which he could claim to have been violated, the absence of which leaves him without a cause of action.

The second ground of recovery is equally meritless. Yielding to the action of the jury in discrediting the positive testimony of both engineers and the fireman that the automatic coupler between the two engines was not changed by the substitution of the link and pin, and accepting the testimony of the interested suitor, there are several sufficient answers to his claim based thereon: (1) Under the circumstances of the change, made to obviate the constant separation of the train because the knuckle of the automatic coupler by reason of the up and down motion of the cars on the soft, uneven roadbed would not hold them together, was not a negligent act of the conductor. On the contrary, it was commendable judgment. (2) The defendant was present when the change was made, and, according to his testimony, he knew the two engines were coupled together in that manner when he undertook to ride on the pilot. (3) He testified as an expert that the slack between the engines was greater when coupled with the link and pin than when coupled with the automatic appliance. He also knew when he unnecessarily undertook to ride on the pilot that by reason of that very slack the liability to jarring while the engines were in motion on such a roadbed were increased, and yet he voluntarily exposed himself to such hazard.

The engineer of the rear engine testified that he only gave steam sufficient to put his engine in motion in connection with its fellow engine, and that there was no impact with No. 623. The engineer and fireman of the front engine testified that there was no jar to their engine from such impact. The jury however, must have been unwilling to credit the testimony of any number of witnesses who were employes of the railroad, except the one who was suing the company, for he alone asserted such violent jar. But if it be conceded that the rear engine did strike the front one with force sufficient to jar it, how does the fact give a...