Union Pac. R. Co. v. Fuller

• Decision Date: 03 March 1913
• Docket Number: 3,873.
• Citation: 204 F. 45
• Parties: UNION PAC. R. CO. v. FULLER.
• Court: U.S. Court of Appeals — Eighth Circuit

204 F. 45

UNION PAC. R. CO. v. FULLER.

No. 3,873.

United States Court of Appeals, Eighth Circuit.

March 3, 1913

In an action for death of a railroad brakeman by being crushed between two cars, whether the engineer's negligence in having the air lever either in full release or in running position, instead of in lap, at the time decedent was engaged in coupling the air hose, was the proximate cause of decedent's death,held for the jury.

This action was instituted by the administratrix of the estate of John C. Fuller, deceased, to recover damages under the national Employer's Liability Act on account of the death of said decedent, alleged to have been caused by the negligence of the defendant. The decedent was in the employ of the defendant as a brakeman at the time of the alleged accident, and the negligent act of the defendant charged in the complaint is:

'That on or about the 17th day of October, 1908, there were standing upon one of the tracks of the defendant company in the city of Omaha 20 loaded freight cars upon which the brakes were set; that while said cars were thus standing the defendant caused said locomotive engine to back a train of 3 cars against said standing cars for the purpose of coupling the said train to said standing cars, and did thereby effect automatically a coupling of said train to said standing cars; that immediately after effecting said coupling the said John C. Fuller, in the discharge of his duty as a brakeman in the employ of the said defendant railroad company, and while employed by the defendant in interstate commerce, reached across the drawbars of the connecting cars of said train and said standing cars and through which said coupling had been effected, for the purpose of coupling the air brake tubes between said cars that in doing this his body came between the drawheads or deadwoods of said cars, and that while in said position, in the performance of said duty, and without any carelessness or negligence upon his part, the said defendant negligently and carelessly, and without proper regard for the safety of the said John C. Fuller, caused said locomotive engine to back said train against said standing cars, and so manipulated said locomotive and so set and used the engineer's brake valve thereon as to cause and permit said last-mentioned cars to move and thereby crush the said John C. Fuller between said deadwoods or drawheads of said cars, and thereby caused his instant death.'

The answer denied that defendant was guilty of negligence, and charged that the decedent was guilty of negligence, which was the proximate, direct, and contributing cause thereof, and that the injury was not due in any manner to any negligence or failure of duty on the part of the defendant. It also pleads assumption of risk. There was a trial to a jury, and a verdict for the plaintiff.

John A. Sheean, of Omaha, Neb. (Edson Rich, of Omaha, Neb., on the brief), for plaintiff in error.

Constantine J. Smyth, of Omaha, Neb. (Edward P. Smith and W. A. Schall, both of Omaha, Neb., on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and W. H. MUNGER and TRIEBER, District judges.

TRIEBER District Judge (after stating the facts as above).

While there were a number of exceptions taken by the defendant during the trial, the only errors relied upon, as stated in the brief of the counsel for plaintiff in error, are that:

'(1) The verdict is contrary to law; (2) the verdict is not sustained by the evidence; and (3) the court below erred in overruling the motion, made by the defendant at the close of he whole case, to direct the jury to return its verdict in favor of the defendant and against the plaintiff.'

These exceptions necessitate a review of the evidence for the purpose of determining whether there was any substantial evidence to warrant the submission of the case to the jury. There is substantial evidence to establish the following facts:

The decedent was in the employ of the defendant as a brakeman on a freight train. The train, upon which he was the head brakeman at the time of the injury, had come into the yards at Omaha, Neb., from Grand Island, with 35 or 36 cars, 13 of which were to be set out in Omaha, and others taken to Council Bluffs, Iowa. The train came to a stop on Union Pacific track No. 4, which was supposed to be level, but by placing an engineer's instrument on the ground at that point it was discovered that there was a grade of about 11 feet to the mile at the point where the accident occurred; but there is no evidence that the decedent knew this. The train was stopped for the purpose of cutting out the 13 cars for Omaha and others for places other than Council Bluffs. The 20 rear cars in the train, and the second, third, and fourth cars back from the engine, were to be taken to Council Bluffs. The second, third, and fourth cars were to be placed on the track upon which the 20 had been left standing. The one next to the engine was detached from the other 3, switched to another track, and the engine came back and coupled onto the 3 cars. The angle cock on the air hose on the ends of the 20 cars was closed, so that the brakes were set on those 20 cars. When the engine came back to the 3 cars, they were pushed up against the string of 20 cars in the usual way, but with sufficient force to enable them to connect automatically. The decedent was standing on the side of the track where the 3 cars were coupled onto the 20 cars, and gave the proper signals to the engineer to move the 3 cars back for the purpose of connecting them with the 20 cars and then to stop.

After the 3 cars had been backed and automatically coupled with the 20, and all of them were at a perfect stop, one Schoberg, a fellow brakeman with Fuller on that train, went in between the tender of the engine and coupled the air hose between the tender and the first car, turned the angle cocks, and as he did so heard the air going through the hose. The decedent went between the third and the 20 cars to couple the air hose and release the brakes. After coupling the air hose, he opened the angle cock on the rear end of the last car attached to the engine, and then reached across the buffer or deadwood to open the angle cock on the front end of the 20 cars. As he turned the angle...