Taber v. Davis, 168.

• Decision Date: 20 February 1922
• Docket Number: 168.
• Citation: 280 F. 612
• Parties: TABER v. DAVIS, Director General of Railroads.
• Court: U.S. Court of Appeals — Second Circuit

280 F. 612

TABER v. DAVIS, Director General of Railroads.

No. 168.

United States Court of Appeals, Second Circuit.

February 20, 1922

Evidence that decedent had worked on the same railroad for 6 years without showing he had worked at the point where he was subsequently killed during all of that time, though he had worked as brakeman there 6 years before his death,held not to show as a matter of law that he must have known of the existence and construction of a canopy over a freight platform.

Mortimer L. Sullivan, of Elmira, N.Y., for plaintiff in error.

Stanchfield Collin, Lovell & Sayles and Frederick Collin, all of Elmira N.Y. (Halsey Sayles, of Elmira, N.Y., of counsel), for defendant in error.

Before HOUGH, MANTON, and MAYER, Circuit Judges.

MAYER Circuit Judge.

At about 2 p.m. on June 28, 1918, Taber, plaintiff's intestate, a trainman then and for some time in the employ of Delaware, Lackawanna & Western Railroad Company, suffered the injuries which resulted in his death. He was working on a train known as the local freight and pick-up, which in the course of its trip reached Bath, N.Y. A pick-up train is a local which picks up and sets out cars at various stations. At Bath the railroad runs east and west, and the freight station is south of the main tracks.

The theory of plaintiff's case is that Taber was struck by a canopy over a transfer platform, which was just west of the freight house and next to the freight house siding. Taber was the middle brakeman of the train, which was proceeding in an easterly direction. When it reached Bath, the orders required that the train take cars from behind the freight house. As the train entered Bath, it proceeded along the track next to the freight house and the canopy to a point easterly therefrom. The engine was then cut off and proceeded to a switch, where it took on a car, detoured around the remainder of the train, and then returned on the track next to the freight house canopy. During this time, the engine was proceeding westerly backing up and pushing this one car. Directly east of the freight house was a crossing and Taber was on the top of the car, as the crossing was approached.

'He was there like for any crossing. At a crossing it is mostly customary for a freight man to ride on top to prevent any accident.'

As this movement was being made, Pelone, the head brakeman stood between the tank or tender of the engine and the car, with his right foot on the car and his left foot on the engine sill. He stood about 6 or 7 inches to a foot from the outer edge of the engine and was in this position, watching for signals from Taber on top.

'As we approached the freight house,' testified Pelone, 'I was standing in the same place, and I heard a crash, and it sounded overhead; so I hung on as tight as I could and a few minutes later I was hit with Taber's body on my left shoulder and glancing my head. * * * He hit the concrete platform and it sort of rolled down in between the engine and the platform. * * * '

Pelone further testified:

'It (the crash) sounded right about the place where the canopy projects out from the freight house there.'

In answer to the question, 'Now, do you know what was to be done after this crossing was flagged as you had passed it? ' Pelone testified:

'It was customary-- in railroading you always, in backing up and trying to get in a switch, you always cut off and interlock your switch to save time; and when the engine goes by, you turn your switch. That was Taber's job when he was on the car.'

The switch was on the side toward the canopy. It was the custom to get off the cars on the side where the switch, which was to be thrown, was situated and this necessitated the use of the side ladder toward the engine; i.e., the side near the end where Pelone was standing, as there was no ladder on the same side at the opposite end of the car. Taber was taken to a hospital, and later died of concussion of the brain, due to trauma.

Further description as to the locus in quo, except as to the canopy, infra, will not be useful, as the location of the tracks is understood by the litigants, and verbal description is not helpful without the aid of the diagram and photographs in evidence.

At the threshold, the question of fact on the evidence is whether Taber came in contact with the canopy, or whether the falling of his body was due to some other cause. The edge of the roof of the freight house proper was back about 18 inches to 2 feet; but according to Barton, a photographer, there was a clearance of only an inch between the edge of the canopy and one car which he observed when photographing, and no clearance in the case of another car. In other words, there was practically no clearance between canopy and car. The freight station was 112 feet long. The canopy was 62 feet long and 12 feet wide, and did not cover the entire cement platform. From the ties of the railroad track vertically to the edge of the canopy, the distance was 15 feet 3 1/2 inches. The canopy was about a foot higher than the roof of the car on which Taber stood, and Taber's height was 6 feet. There were no telltales nor warning devices before the canopy was reached. It is stipulated that Taber and defendant were engaged in interstate commerce and that Taber was in defendant's employ.

1. The first question is whether or not Taber was struck by the canopy. No one saw the contact. While a witness, Burke, saw Taber 'falling in the air,' he did not see him prior thereto. Thus the evidence is that Taber, a temperate and experienced man, without physical defect, so far as the record discloses, had been standing on the roof of the car in the performance of his duty, that he was 6 feet tall, that the canopy was only a foot above the car, that there was practically no clearance between the side of the car and the edge of the canopy and that a crash was heard just about the time the car was passing the canopy, and at a time when it could reasonably be inferred that Taber, in the performance of his duty, was going down the ladder to turn off the switch. There are other details of argumentative value, which need not be recited. The question is, not what counter arguments could be presented to a jury by defendant, but whether, on this testimony, the jury would have been remitted to speculation, or whether there was evidence upon which the jury could predicate the conclusion that the injury was caused by contact with the canopy.

We think the case at bar presents a state of facts less troublesome in this respect than those set forth in Choctaw, Oklahoma & Gulf R.R. Co. v. McDade, 191 U.S. 64, 24 Sup.Ct. 24, 48 L.Ed. 96. We have not failed carefully to consider the observations in respect of this same occurrence of the experienced judge who wrote for the Appellate Division of the Supreme Court, Third Department, in Taber v. McAdoo, 188 A.D. 341, 177 N.Y.Supp. 104. We have not before us the testimony of McGrain, the 'actual eye witness' therein referred to. But, irrespective of such testimony, we think that the physical movement of Taber's body on the evidence in this case cannot be so surely accounted for as to warrant us in holding, as matter of law, that his body did not come into contact with the canopy. Experience in the trial courts warns us that, except in the plainest cases, it is unsafe for courts to assume that the descent of a body, in circumstances such as here described, can be explained only upon one theory. The testimony, in our opinion, was of the character which invites argument pro and con, and presents a question of fact for submission to a jury.

2. The Construction of the Canopy. This is the third trial. Taber v. McAdoo, 188 A.D. 341, 177 N.Y.Supp. 104 and 192 A.D. 939, 182 N.Y.Supp....