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

• Decision Date: 22 July 1909
• Docket Number: 1,918.
• Citation: 172 F. 82
• Parties: TOLEDO, ST. L. & W.R. CO. et al. v. BARTLEY.
• Court: U.S. Court of Appeals — Sixth Circuit

172 F. 82

TOLEDO, ST. L. & W.R. CO. et al. v. BARTLEY.

No. 1,918.

United States Court of Appeals, Sixth Circuit.

July 22, 1909

This was an action brought in the Circuit Court of the United States, Northern District of Ohio, to recover damages for personal injuries. It was brought by Earl Bartley (a minor 16 years old), through his guardian, against Toledo, St Louis & Western Railroad Company and Detroit & Toledo Shore Line Railroad Company; jurisdiction having been obtained through diverse citizenship. The cause of action, in substance, was: That on October 19, 1905, under some contract not known to plaintiff, the defendants jointly used a certain railroad yard, which was owned by the first-named company, at a place known as M. C. Junction, at Toledo; that plaintiff was in the employ of the first-named company as a water boy and helper to its section foreman; that it was the custom of the companies, before setting cars in motion, to give notice thereof to persons employed in the yard, which custom was well known to both defendants; that plaintiff, in the performance of the services required of him, started across the tracks in the yard to secure water for the men employed upon the section; that to do this it was necessary to cross various tracks; that, while he was attempting to pass over a track on which a number of cars were standing plaintiff having no notice and being unable to see that the cars were about to be set in motion, the defendants wrongfully, carelessly, and negligently caused a locomotive with cars attached to be backed upon the track upon which these cars were standing, and to strike them with such force and violence as to drive them against plaintiff and cause four of the cars and part of the fifth to pass over him, to his serious injury; and that plaintiff was without fault.

The defendants filed separate answers, which were similar in all respects, except that the Toledo, St. Louis & Western admitted owning and operating the railroad yard, and that plaintiff was in its employ. Both companies denied negligence on their part and charged contributory negligence against plaintiff.

The cause was tried to court and jury, and resulted in a verdict for plaintiff. Motions for new trial were overruled, and judgment was entered upon the verdict. Both companies are prosecuting error in this court, with bill of exceptions containing the evidence and proceedings.

Charles A. Schmettau, for plaintiffs in error.

Charles A. Thatcher, for defendant in error.

Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

There are five leading complaints of error. They relate, first, to the alleged custom or rule of the yard to give notice before commencing any movement of cars; and, second, to the court's refusal: (1) to direct verdict for both defendants; (2) either to grant special instructions stating, or in the general charge to state, that plaintiff was bound to look and listen before attempting to cross the track; (3) to grant certain special charges touching plaintiff's infancy; and (4) on its separate motion to direct verdict for the Toledo, St. Louis & Western on the ground that the only negligence shown was that of its codefendant.

The errors alleged will be better understood through brief description of the tracks of the yard and the location and use made of the track upon which the injury occurred, with an explanation as to the standing cars and the line of approach thereto by plaintiff and the line along which the moving engine and cars were driven, as these matters are disclosed by the evidence.

At the time of the accident there were 14 yard tracks south of the main line and 4 tracks north of it. These tracks ran approximately northeast and southwest. The tracks south of the main line were numbered from 1 to 14, commencing at the main track. The lead track, from which the yard tracks extended southwesterly, was located at the northerly end of the yard and curved northwardly. Tracks 12 and 13 were used mostly, if not entirely, for storage purposes and doubling in of trains. Cars containing grain were frequently stored on these two tracks, and the grain was there inspected.

The accident occurred on track 12, and at that time there were 18 refrigerator and furniture cars standing upon it. The distance between the point where plaintiff attempted to cross track 12, and the point in the lead track from which the moving engine and cars were brought upon track 12 is not certain, but must have been close to 1,000 feet. The cars of the standing train were connected by automatic couplers, and, according to the evidence, could be set in motion as a unit if struck by a moving train.

Plaintiff started from a point northeast of these standing cars, and, going in a southwesterly direction, crossed the yard tracks until he reached the standing train one car length from its southwest end. He stopped to read an advertisement on a car, and then walked to a point 10 feet beyond the end last mentioned of the standing train, when he attempted to cross the track and was injured. Shortly before plaintiff reached this point, a train belonging to the Shore Line Company had been divided by placing a portion of the cars on track No. 1, and the rest with the engine in rear were then moved to track 12, and were driven thence against the end of the standing train opposite to the end near which plaintiff was crossing the track. The standing train was struck with such force that four cars and a portion of the fifth were driven over plaintiff. This train had been . . . in that place, and plaintiff had seen it there throughout his employment, a period of nine days.

Under the issue as to a custom, rather a rule, to notify persons employed in the yard before moving cars once placed and left upon a yard track, there was conflict of testimony; some witnesses testifying that it originated in a purpose to protect all persons engaged or having business in the yard, and others that its object was to protect persons inspecting grain on cars stored on the track and persons working upon the cars themselves. But there was no conflict over the acts done under the rule, in this, that whenever a road engine and cars, as here, were taken upon a yard track on which there were standing cars, a man was sent to the further end of the standing cars to give warning. The court, in its charge, stated the claims of the parties respectively in regard to the rule, also that proofs had been offered by plaintiff in support of his claim, as well as by defendants in support of their claim. The court instructed the jury, in substance, that, if the claim of defendants were true, then that no negligence had been proved against them, and that plaintiff could not recover, but, on the other hand, stating:

'So, * * * the first question is: What was the rule or custom? And if the plaintiff, by a preponderance of the proof, * * * has made it appear that the rule or custom in that yard was as I have last stated it, that it was that a man should be sent down there for the purpose of warning anybody who might be on or near the track to prevent his being run over by the cars, then the plaintiff would have a right to recover in this case, unless he himself, as I shall define it to you, was not exercising ordinary care for his own safety.'

In view of such submission and of the verdict, the issue of fact in this respect must be treated as determined in favor of the plaintiff. It was not claimed by the defendants that any notice or warning had been given that the cars were about to be set in motion, and no such warning or notice was in fact given.

The clear result of this was to find that both defendants were negligent.

Now, as to contributory negligence. Plaintiff testified that he did not look or listen for approaching cars when crossing the track, and this failure is claimed to be fatal to his right of recovery. Was the general rule to look and listen the only one by which plaintiff's conduct could be rightly tested?

There was testimony, including that of plaintiff, tending to show that to have looked or listened would have been futile. It appears that there was a curve in track No. 12, which, together with the train of standing cars thereon, and other cars on an adjacent track, obstructed the view and prevented seeing the approaching engine and cars; also, that plaintiff had for hours heard another engine working in and about the place from which the engine and cars mentioned were brought. With this obstructed view and the confusion of distant noises necessarily arising from the two engines, plaintiff, in the absence of warning or knowledge that any movement of the train of standing cars was intended, undertook to cross, not at the immediate end of the train, but at a point 10 feet away from it.

Despite the failure to look and listen, it will not do to say that plaintiff did not exercise any care and caution. It is plain enough that he would have crossed in safety if the train of standing cars had not been struck with extraordinary force and violence. There is no conflict in the testimony that the stroke was so sudden and unexpected that he had not time to escape. The evidence shows that, owing to the connecting automatic couplers, the effect of the stroke delivered at the further end of the train of standing cars was immediately communicated to the end which struck plaintiff. There is evidence, too, that the stroke was so great as to injure one or more of the cars.

Does such a case present a mere question of law, to be determined by the court? Or should it be governed, rather, by the class of decisions declaring, under the peculiar circumstances involved, that the conduct of the injured party...