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

• Decision Date: 14 April 1909
• Docket Number: 1,861.
• Citation: 168 F. 832
• Parties: TOLEDO, ST. L. & W.R. CO. v. KOUNTZ.
• Court: U.S. Court of Appeals — Sixth Circuit

168 F. 832

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

No. 1,861.

United States Court of Appeals, Sixth Circuit.

April 14, 1909

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Chas A. Schmettau, for plaintiff in error.

Chas. A. Thatcher, for defendant in error.

Before LURTON and SEVERENS, Circuit Judges, and KNAPPEN, District judge.

KNAPPEN District Judge.

The defendant in error, plaintiff below, sued to recover damages on account of the death of his intestate, which is alleged to have been caused by his being run over by the defendant's yard train, in consequence of the catching of his foot in a frog, connected with a switch which was unblocked. Plaintiff's petition alleged negligence in the operation of the engine, in failing to have a headlight on the engine, and in running the train at an unlawful rate of speed. It also alleged a violation of section 3365-- 18 of the Revised Statutes of Ohio, which requires every railroad operating in that state to 'adjust, fill or block, all angles in frogs, switches, and crossings on their roads in all yards, divisional and terminal stations where trains are made up. ' All the grounds of negligence except the violation of the statute referred to were withdrawn by the court from the consideration of the jury. There was a verdict and judgment for the plaintiff, and a denial of motion for new trial.

At the conclusion of the testimony the defendant moved for a peremptory instruction in its favor, upon the ground that plaintiff had failed to prove by a preponderance of the evidence that failure to block the frog was the proximate cause of the accident, and that the plaintiff was shown by the proofs to have been guilty of contributory negligence. Miller, the decedent, was employed by the defendant as night watchman at the crossing of Hamilton street and defendant's tracks in the city of Toledo. The tracks in this section run in a northerly and southerly direction.

About a block south of Hamilton street the railroad crosses a swing bridge over Swan creek. A little north of Hamilton street there were three switches, one running to the west of the main track, a second extending east and north, and a third, known as the 'Schenk coalyard switch,' going off to the south and east. It was Miller's duty on the approach of a train from the north to see that the bridge (to the south) was closed, that the switches (to the north) were properly set for the main track, and then to give a signal to the approaching train that the track was clear; the train being required to await that signal 300 or 400 feet north of the Hamilton street crossing. After giving the signal it was Miller's duty to take his station on the west side of the tracks and on the northerly side of Hamilton street to protect traffic at the crossing. The frog in the coalyard switch had been entirely unblocked for about two months. The evidence amply supports the conclusion that Miller's death was caused by the catching of his foot in this unblocked frog connected with the coalyard switch. The propositions on which the peremptory instruction was asked, so far as their discussion is justified, rest upon the contention that the catching of Miller's foot in the frog was due to his own negligence. The theory on which the alleged negligence is predicated is that at the time he signaled the train to come on he was on the west side of the tracks; that it was his duty to go at once to the north side of Hamilton street and west of the tracks; that from the place where the signal was given there was an open space between the tracks eight feet in width leading to his station referred to; that he had thus no occasion to cross the tracks or to be at the frog in question; that the evidence indicates that he was either crossing the tracks or walking ahead of the approaching train when not required to do so in the performance of his duties; and that the probabilities favor the theory that his foot was jammed into the frog after he was struck by the train.

There is evidence tending to support this theory, viz., testimony indicating that immediately before the signal was given Miller was seen coming toward the railroad tracks down an alley between Hamilton street and the next street north, and thus toward the three switches in question; that a little later the signal to the train was given from the west side of the tracks and near the north side of Hamilton street. This testimony, however, was not undisputed. There was testimony to the effect that the signal was not required to be given from the west side of the tracks, but was properly given upon the tracks and at the switch; that the reason assigned for giving the signal upon the westerly side of the tracks, viz., that the signals were given to the engineer, did not apply in this case, from the fact that the engine which pulled the train in question was headed northerly and was thus running backwards, the engineer being thus on the east side; the fireman, whose opportunities for observation were fully as good as those possessed by the engineer, was unable to say that Miller was seen in the alley or that the signal was not given at the switch in question; and the testimony of the engineer was discredited by his testimony immediately following the accident, alleged to be inconsistent with his testimony upon the trial, and by other evidence. There was ample room under the testimony for the conclusion that Miller's foot was caught in the frog before he was struck by the train, and that he was so overtaken by reason of his foot being caught; and the testimony, considered together, was entirely consistent with his having been at the switch when the signal to the train was given, and with the catching of his foot as he was leaving the switch for his station on the north side of Hamilton street.

There was no error in refusing the request for a peremptory instruction.

Complaint is made of the court's refusal to give certain requests presented by defendant, numbered 7 and 16, both directed to Miller's alleged negligence in crossing the tracks ahead of the train. Each of these requests contained a definition of proximate cause. Request No. 7 contained the instruction that plaintiff could not recover without proving that defendant's negligence was the proximate cause of Miller's death. The court submitted to the jury, under careful instructions, the question of Miller's contributory negligence, placing sharply before the jury the conflicting claims of the parties.

The jury was told that if Miller, while engaged in the performance of his work, or, having just performed his duty was leaving the place where he had performed it, and while exercising ordinary care for his own safety, was caught by his foot in an unblocked frog, and in consequence of being thus caught was killed, the plaintiff was entitled to recover; that on the other hand, if Miller was not himself exercising ordinary care for his own safety, and if failure to exercise such ordinary care contributed to the accident, there could be no recovery; and, specifically, that if Miller was struck and killed while walking along the track, between the rails, no recovery could be had; and, further, upon defendant's request, that if, after giving the signal, it was Miller's duty to go to the crossing of Hamilton street, and if he could reach that crossing by walking between the tracks, where he was safe from the approaching train, but if, instead of doing so, he walked along the track on which the train was running, ahead of the train, such action was the proximate cause of death-- in which case, even though Miller's foot was caught in an unblocked frog, the defendant would not be liable. A further instruction requested by defendant was given, to the effect that if, after giving the signal to the train, Miller, knowing the train was approaching, went upon the track and...