Toledo, St. L. & W.R. Co. v. Howe

• Decision Date: 07 November 1911
• Docket Number: 2,112.
• Citation: 191 F. 776
• Parties: TOLEDO, ST. L. & W.R. CO. v. HOWE.
• Court: U.S. Court of Appeals — Sixth Circuit

191 F. 776

TOLEDO, ST. L. & W.R. CO. v. HOWE.

No. 2,112.

United States Court of Appeals, Sixth Circuit.

November 7, 1911

Action by administrator for damages for alleged wrongful death.

Silas L. Hollopeter, 21 years of age, industrious and in good health, had been in the employment of the railroad company as brakeman for several days prior to the day of the accident which resulted in his immediate death. He took care of his mother, and out of his earnings paid off an indebtedness of $300 on her farm. At the time of his death he was capable of earning from $70 to $75 per month. On September 21, 1906, he was working upon a local freight train of defendant, which was engaged in switching freight cars at Ohio City, Ohio from defendant's tracks to the tracks of the Erie Railroad, over a Y track connecting the two. The connecting track was sharply curved, running generally in an easterly direction from the defendant's tracks to the Erie track and each rail was protected by two guard rails, one on either side of the main rail. The northerly guard rail of the southerly rail was from 3 to 3 1/2 inches from the southerly rail. There was no blocking of any kind between the rail and the guard rail.

The train was operated by an engineer, a fireman, a brakeman named Garee, and the decedent. The engine was headed toward the west. Prior to the accident two cars had been backed and 'kicked' from the train eastwardly onto the Y toward the Erie track, and had come to a stop. The westerly car was a 'Pennsylvania' car. In continuing the switching to be made the train, then consisting of three cars besides the locomotive, backed toward the Pennsylvania car. The last two cars were kicked toward the Pennsylvania car. The car at the end of the train was an Erie gondola car, and the operation in which Hollopeter was killed was for the purpose of coupling the Erie car to the Pennsylvania car. The cars coming together failed to become coupled, and on the rebound were from four to six feet apart. Hollopeter had been on the Erie car and got off on the south side, and after the rebound of the cars was seen to reach in between them for the purpose of opening the knuckles of the couplers by hand. Garee was on the north and convex side of the track and train, and could not see Hollopeter.

Just when Hollopeter got off the Erie car does not appear, but it was his duty to couple the cars. The Erie car was not equipped with an automatic coupler. It had a lever at the end reaching out to the side on which Hollopeter was for the purpose of operating the coupler on the car. While the lever would operate the coupling pin, it would not operate the coupler itself, and it was necessary for Hollopeter to go between the cars and adjust the coupler. He was known as the field man, whose duty it was to signal to the fireman, whose place was on that side of the train, who, in turn, would notify the engineer, who would then proceed to make such movement with the engine as would accord with the signal given by Hollopeter. When the cars failed to couple, Garee signaled the engineer, whose place was on that side of the train, to back up, so that the coupling could be made. Garee was some distance away from where the coupling was to be made, and it was not his duty at that time to make, or assist in making, the coupling, or to give signals for the movement of the engine. In response to Garee's signal, the engineer backed the train very slowly, and Hollopeter was killed. After the accident his right foot and leg, almost to the knee, were found between the main southerly rail and its northerly guard rail. The foot was pointed westwardly, and the shin was up, with some indication of being twisted northwardly. The body was across the track. The head pointed in a southeasterly direction. The wheels of the easterly truck and the first wheel of the other truck had run over him. The other wheel of that truck stopped on his body. He was seen struggling after the first wheels passed over him.

He testified, among other things, as follows: 'A. I saw two cars moving down the track slowly and Mr. Hollopeter stepped between the cars to make a coupling, and apparently-- A. I saw Mr. Hollopeter step between the cars, and apparently his foot was-- A. He reached for the next car to keep from falling as the Erie car started. The Court: The conclusion as to why he did it is perhaps subject to objection. You may state what you saw him do and what attitude he was in. A. Well, he stepped to the end of the car. Q. Which car was it? A. The Erie car. Q. And was that moving or not at that time? Mr. Schmettau: We object, because of the admission and stipulation that that car was standing still. Q. What movement did you see him make with his hands and feet, just describe that? A. He stepped either on or between the rails to reach the knuckle to open it, put the left hand on the corner or on the operating lever to raise the lock. I couldn't say which it was, whether it was on the corner of the car or the operating lever. And the car struck him and he tried to get out and reached for the next car to keep from falling, and, while he was out of sight, why the first two wheels passed over him. After they passed over him he struggled to get out from under the car. The next truck run, the first wheel run over him, and the next wheel-- that is, the fourth wheel-- stopped on his body. Q. Now at the time you saw him reach toward this knuckle, and before he appeared to fall, what, if any movement, did you notice of his legs and feet, before the car struck him, I mean? A. Well, just as the car did strike him it looked like he tried to get away. Q. Just describe his movements. What indicated that to you? The Court: Wasn't that after he was down? Do you mean after he was or still standing? A. He was still standing. He reached for the next car. Q. Before he was struck? A. Well, just as he was struck. Apparently just as he stepped in between the cars the car was struck, or moved at least, and he fell and the wheels passed over him. Q. Where did you find his leg, after this, and foot? A. Between the main rail and the guard rail. Q. How was it fastened, if at all? A. Well, it was crushed in between the rails. Q. Securely fast there or not? A. Yes, sir. Q. Previous to the time the car struck him, you may state whether you saw him make any movements to get out or reach toward the other car? A. No, sir. He reached at the time he fell; well, almost the same time the car was struck.'

Hollopeter gave no signal to the fireman. The claim of the administrator was based on the alleged negligence of the defendant, in that it violated the statute of the state of Ohio, and the statute of the United States, in failing to have the cars in the train equipped with couplers, coupling automatically by impact, and which could be coupled without the necessity of a man going between the ends of the cars; and was also based on the alleged negligence of the defendant at common law, in maintaining the guard rail so close to the main rail, and in such position that the brakeman's feet were liable to be caught between the rails, and he would be exposed thereby to the danger from moving cars, and that the defendant failed to fill or block the space between the rails for the purpose of preventing the foot being caught between them.

The only eyewitness was J. C. Pennell, who at that time was car inspector for the Erie Railroad. He was sitting in the car inspector's shanty about 300 feet away. He could not say whether he had noticed the two cars, one of which was the Pennsylvania car, standing on the Y.

The only question touching the defendant's negligence submitted to the jury was whether the defendant was negligent at common law.

At the close of the evidence defendant moved for an order instructing the jury that, under the pleadings and the evidence, the plaintiff was not entitled to recover. After a careful and elaborate charge the jury returned a verdict for $3,500. Defendant's motion for a new trial was overruled.

The assignments of error are numerous, but the three errors relied on, as stated in the brief of counsel for defendant, are dealt with in the opinion. The remarks of counsel to which objection is made, but upon which no ruling of the court was asked as a basis for an exception are:

'Now, gentlemen of the jury, it seems to me there is nothing in this case except how much shall be awarded. The statutes of Ohio do not contemplate or make it necessary that you should get down and figure dollars here and dollars there and add them up. But you have a wide discretion left to you to your judgment as to what in all likelihood must have been the assistance and help which he would have contributed to his mother. And let me also say to you, gentlemen, in awarding this amount, I would like to have you keep in mind that it is not in the power of the court to increase it. Your judgment of the amount cannot be increased $1. I don't say this to you with the view that you make it excessive--

'Mr. Schmettau: We object to this as improper argument.

'Mr. Thatcher (continuing): But I want to impress upon you the fact that under the jurisdiction, and in this court where you are sitting, questions of fact of this character are particularly for you to decide, and your verdict in that respect is likely to be final.'

Before submission the charge of contributory negligence was withdrawn. No claim is made in the argument or in the brief of counsel for plaintiff in error that Hollopeter assumed the risk of his employment, and no exception was taken by either party of the assumption in the charge that defendant's servants, the engineer, and the brakeman, Garee, were negligent and were fellow servants of Hollopeter.

Charles A. Schmettau (Lloyd T....