Terre Haute & I.R. Co. v. Mansberger

• Decision Date: 14 January 1895
• Docket Number: 178.
• Citation: 65 F. 196
• Parties: TERRE HAUTE & I.R. CO. v. MANSBERGER.
• Court: U.S. Court of Appeals — Seventh Circuit

65 F. 196

TERRE HAUTE & I.R. CO. v. MANSBERGER.

No. 178.

United States Court of Appeals, Seventh Circuit.

January 14, 1895

Greene & Golden, for plaintiff in error.

Craig &amp Hamlin, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BAKER, District Judge.

BAKER District Judge.

It is contended that the court erred in submitting to the jury the question whether the plaintiff in error was chargeable with negligence in using the defective coupling pin, the breaking of which permitted the cars to separate, and thus caused the defendant in error, in attempting to pass from one car to another, to fall between them, and sustain the injuries of which he complains. The plaintiff in error did not ask the court to give to the jury a binding instruction to return a verdict in its favor, for the reason that there was not sufficient evidence to authorize them to find and return a verdict for the defendant in error. The case was submitted to the jury on the evidence produced, without any objection specifically asking the court to rule as matter of law that there was such failure of proof as would preclude a verdict for the plaintiff below. The question of the negligence of the plaintiff in error in using the defective coupling pin having been submitted to the jury as a question of fact, without objection, their finding on that question is conclusive on this court. Elevator Co. v. Lippert, 63 F. 942. We have no authority to review any questions except rulings of the trial court involving matters of law, properly saved by exception and assigned for error. And if the question of the sufficiency of the evidence to prove actionable negligence in the use of the defective coupling pin were open to review here, we could not examine it because the bill of exceptions does not profess to embody all the evidence given on the trial of the cause. Railroad Co. v. Myers, 63 F. 793.

We have carefully read the evidence in the record, and are satisfied that it was sufficient to carry the question of negligence to the jury. The defendant in error was a brakeman on an east-bound through freight train of the plaintiff in error which had been made up in its yards at East St. Louis, in the state of Illinois. Near Pine Bluff City, in that state, the train parted. The forward part of the train, consisting of the engine and tender and 13 freight cars, became separated from its rear part, consisting of a caboose and 7 freight cars. The crew with the forward part of the train consisted of the engineer, fireman, and one brakeman, the defendant in error. He was on the top of the cars, while the engineer was backing the forward part of the train down a steep grade, to couple onto the detached portion. The defective coupling pin in question was in use as a part of a foreign car which had been delivered to the plaintiff in error for transportation over its line, and had been put into the train at East St Louis. This coupling pin was broken while the forward part of the train was moving back, and the thirteenth car, on which the defendant in error was riding, became separated from the twelfth car, and in attempting to pass from one to the other he fell between them, and was seriously injured. The night was dark, and it had been snowing somewhat. His purpose in attempting to pass from the thirteenth car to the twelfth was to enable him to reach and set the brake on the eleventh car, with a view to control the movement of the forward section of the train. The evidence shows that the coupling pin had a break in it extending from one-fourth to one-third of the way through it; that the break was rusty, and looked as though the pin had been cut into with a knife, and had then been exposed to the weather. The only witness who spoke on the subject said he could not say whether or not the fracture could have been seen before the pin was broken.

It is insisted that the jury was not warranted, on this state of the proof, in finding negligence in the use of a defective pin. It is claimed that the plaintiff in error had a car inspector at East St. Louis, and that, while there is no evidence to prove that he actually inspected the car having the defective coupling pin, the presumption, in the absence of proof, is that he performed his duty, and inspected the car, and discovered no defect. And it is further claimed that, if the inspector neglected to inspect the car, or if he made an insufficient inspection, the defendant in error can have no recovery for such negligence, because the car inspector is to be deemed the fellow servant of the injured brakeman. We have held in the recent case of Railroad Co. v. Myers, 63 F. 793, that it is the duty of a railroad company receiving foreign cars for transportation over its line to inspect them, to see if they are in a reasonably safe condition of repair; that, if they are found to be out of repair, the company must refuse to receive them, or, having received them, it must put them in a reasonably safe condition of repair; that the inspection...