Tennessee Cent. Ry. Co. v. Shacklett
| Decision Date | 21 September 1940 |
| Citation | 147 S.W.2d 1054,24 Tenn.App. 563 |
| Parties | TENNESSEE CENT. RY. CO. v. SHACKLETT. |
| Court | Tennessee Court of Appeals |
Certiorari Denied by Supreme Court March 1, 1941.
Appeal in Error from Circuit Court, Davidson County; J. B. Daniel Special Judge.
Action by Esther Shacklett, administratrix of the estate of James L Shacklett, deceased, against the Tennessee Central Railway Company, to recover for decedent's death under the Federal Employer's Liability Act, 45 U.S.C.A. § 51 et seq. The plaintiff recovered a judgment, and defendant appeals in error.
Reversed and suit dismissed.
Walter Stokes and Roberts & Roberts, all of Nashville, for plaintiff in error.
Carmack Cochran and G. S. Moore, both of Nashville, for defendant in error.
James L. Shacklett, a switch foreman, was killed by being caught between the side of a box car and a warehouse loading platform; and his daughter as administratrix brought this action to recover for his death. She sued the Tennessee Central Railway Company, the Tennessee Central Station Company, and the owner of the warehouse, C. B. Ragland Company, alleging two causes of action, one under the common law against all the defendants and one under the Federal Employers' Liability Act against the Railway Company and the Station Company. Upon the Railway's motion she was required to elect and elected to proceed under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq. taking a non-suit as to the Station Company and a mistrial being entered as to the Ragland Company. She obtained a verdict against the Railway for $4,500, which was reduced by remittitur to $2,500, upon which judgment was entered.
The Railway appealed in error. Its chief insistence is that a verdict should have been directed for it because there is no evidence of any negligence on its part, and because the evidence shows, as a matter of law, that the deceased assumed the risk.
Shacklett and his crew were engaged in switching three cars which were moving in interstate commerce, all of them containing goods shipped to the Ragland Company in Nashville, Tennessee, from points outside the state. The crew were placing the cars on an industrial track alongside the Ragland warehouse. This warehouse was on the southwest corner of Molloy Street and Basil Alley, the street running east and west and the alley north and south. The warehouse had a concrete loading platform, fronting on the alley, along which the track ran, and fronting also on Molloy Street. The part of the platform fronting on the track was 6 feet 1 inch wide and 301 feet 7 inches long. The floor of the platform was 4 feet 4 inches above the level of the alley, about the same height above the rails, and about 4 inches higher than the bottom of the floor of a box car on the track. The east margin of the platform was so close to the track that there was only 9 or 10 inches of clearance between the platform and the side of a car. At a point 16 feet 11 inches south of the north end of the platform there had been erected a gangplank support to enable the Ragland employees to use a gangplank in walking back and forth between the warehouse and another building just across the alley, which also belonged to the Ragland Company. This gangplank support consisted of two upright timbers with a horizontal timber on top of them. This support was about 2 inches lower than the platform and projected some 5 inches further toward the track. So the clearance at this point was reduced to 4 or 5 inches.
It was Shacklett's duty as foreman to protect traffic at the Molloy Street crossing and to see that the cars were properly placed, their brakes set and their wheels "chocked." From the north toward the south the track ascended a grade of about 7%. The flood waters of the Cumberland River had been over the track and up nearly to the floor of the platform. The waters had receded to a point below or north of Molloy Street, leaving sediment, mud and debris over the track, in Molloy Street, and around the platform. The members of Shacklett's crew were the engineer, the fireman and two switchmen, Richards and Hilton. The engine was behind the string of cars pushing them south or up the grade toward the designated locations at which they were to be placed alongside the platform. Due to the mud and water on the track, the crew were having difficulty, having made two unsuccessful attempts to push up the cars, and were engaged in the third attempt. In order to get up the momentum to make the grade, the train had backed down some distance north of Molloy Street. Shacklett was standing in Molloy Street a little north of its center and west of the track, on the same side with the platform and about 30 feet north of it, flagging this crossing. Richards was standing on the front car, Hilton was standing on the car next to the engine, and the engineer was looking through the front window of his cab at Hilton, watching for signals. It was Richards' duty to give signals and Hilton's duty to transfer them to the engineer to stop in case of an accident or when the cars reached their proper place.
On account of the mud and water Shacklett was wearing rubber boots. As the train approached and about the time the front car got even with him, Shacklett undertook to climb up on the side of it, taking hold of one of the ladder irons with his hands and stepping up on the sill step or stirrup, which was 13 1/2 inches below the bottom of the car, with his right foot. This foot slipped from the stirrup, and, swinging on with his hands, he placed his left foot in the stirrup, but before he had time to step from the stirrup up to the first rung of the ladder, which would have cleared him of the platform, his hip struck the corner of the platform and his body was "rolled" between the side of the car and the platform four or five turns to about the point of the gangplank support, when he fell beneath the floor of the car, was drawn under its wheels and both his legs were severed. He died in a few minutes.
It is insisted that the Railway was guilty of negligence in several particulars, all of which, we think, are embraced in two main propositions, viz.: That Richards, if he had been keeping a proper lookout, could have prevented the accident by timely signal to the engineer to stop the train; and that by allowing the platform and gangplank support to be in dangerous proximity to the track and by not clearing the track of the sediment, mud and debris the Railway breached its duty to use ordinary care to provide a reasonably safe place of work for its employees.
None of the trainmen saw Shacklett's peril. On the north side of Molloy Street there were large buildings on both sides of the track. The fireman was on the far side of the engine from Shacklett. The buildings were so close to the track the engineer could not look from the side of his cab and see ahead, could not see Shacklett, and could not see the loading platform until the cab got within 20 or 30 feet of Molloy Street. For the same reason Hilton, the switchman on the car next to the engine, could not see Shacklett and could not see the platform until the car he was standing on got within 30 or 40 feet of Molloy Street. All this seems to be conceded by counsel. They say: "Richards, the only man who could see and who should have seen, was standing with his back to the south looking north and facing the engine when Berridge gave the danger signal." Berridge was one of the Ragland employees standing on the platform, who began waving and "hollering" to stop the train, when he saw Shacklett swinging on the car being carried toward the platform. He said Shacklett "had already crossed two-thirds of Molloy Street" when he first noticed Shacklett's predicament and began to signal to stop the train. Molloy Street was 47 feet wide. That is to say, from the time Berridge saw Shacklett was in peril to the time he struck the platform, he was carried about 16 feet. The speed of the train was not shown. At the time he began to signal Berridge saw only one member of the train crew, the switchman who, he said, was on "the car next to the engine." This was Hilton, not Richards. Richards was standing about the middle of the top of the front car. His view of Shacklett was cut off by the car before its front end got even with Shacklett, and his view of the platform was cut off by the car and a shed over the platform before the front of the car reached the north end of the platform. This is shown by photographs sent up. The engineer and Hilton saw the employees on the platform waving, and Richards heard them "hollering", at about the same time. As the engineer applied his emergency brakes, he saw the signals from the switchmen. The train stopped within about 15 feet, which was as soon as possible. We think these facts, which are not disputed, afford no basis for an inference of negligence on the part of Richards or any other member of the crew. Toledo, St. L. & W. R. Co. v. Allen, 276 U.S. 165, 167, 48 S.Ct. 215, 72 L.Ed. 513.
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