Union Pac. Ry. Co. v. Novak

• Decision Date: 02 April 1894
• Docket Number: 114.
• Parties: UNION PAC. RY. CO. v. NOVAK.
• Court: U.S. Court of Appeals — Ninth Circuit

61 F. 573

UNION PAC. RY. CO. v. NOVAK.

No. 114.

United States Court of Appeals, Ninth Circuit.

April 2, 1894

This is an action brought by George J. Novak, defendant in error, but herein designated as plaintiff, to recover damages against the Union Pacific Railway, plaintiff in error, hereafter designated as defendant, for injuries received by him on the 21st of July, 1890. The complaint, with reference to the negligence of the defendant, and the injuries received by plaintiff, alleges that on July 21, 1890, while plaintiff was in the employ of defendant as a fireman upon one of its engines, hauling a long train of cars from a point east of Rockford, the engineer in charge of the locomotive lost control of said locomotive and said train of cars, 'by reason of the negligence of defendant and the defective machinery, as hereinafter complained of, and that said locomotive and train of cars, at a great rate of speed, ran into a large number of cars standing on the main line of said railway at said town of Rockford, striking them with great force, and greatly damaging and breaking both said cars and said locomotive, and compelling plaintiff to jump whereof he was thrown down with great force and violence, and his left leg broken in four places, his arm and shoulder dislocated and otherwise permanently injured internally, as to cause among other things, paralysis of the bowels, whereby he is now, and will always remain, unable and unfit for labor or work of any kind whereby he can earn a livelihood, and will be a cripple and disabled for life;' that the injuries he received were caused solely by the negligence of the defendant; 'that the air cylinder and air-brake appliances upon said locomotive, and the tank attached thereto, provided for the purpose of controlling the brakes on said locomotive, tank, and the cars in said train, were out of repair, and would not work; that the shoes were also off and displaced from the steam brake attached to said locomotive, by reason of which said steam brake would not work, and could not be used and had been but a short time engaged in working on and about locomotives, and firing same and was unacquainted with the use and necessity of having said appliances so as to aid in checking the speed of a train, and was unacquainted with, and unconscious of, the danger to accident from want of said appliances, and of operating, or attempting to operate, a train without said appliances,' and had never been informed or instructed thereabout by defendant; that said defendant negligently failed to provide said train with a conductor, and only provided one brakeman therefor, who would be, and was, wholly unable to check or control the speed of said train by means of the hand brakes upon said cars, without the aid of the air brake aforesaid.

The answer of the defendant specifically denies all the allegations of negligence alleged in the complaint, and affirmatively avers that, owing to the negligence and carelessness of plaintiff and his fellow servants, the train was allowed to run down the grade into Rockford at an excessive rate of speed, instead of being kept under control while approaching Rockford station, and prepared to stop in order to avoid other trains.

The facts material to the issues raised by the assignment of errors, not otherwise specifically stated in the opinion, are that at the time of the accident the plaintiff was 19 years of age; that he had been in the employ of the defendant for 11 months prior thereto as wiper of the engines in one of the defendant's roundhouses, and was placed upon the locomotive engine No. 87, as fireman, about 16 days prior to the accident; that prior to that time he had made two or three trips as extra fireman; that the tank belonging to engine No. 87 was equipped with air brakes, but before the day of the accident this tank had been taken off, and another tank, without air brakes, was then being used; that this tank had only a hand brake upon it; that the steam brake on the engine was defective; that 2 out of 12 shoes were worn or missing, which reduced the braking power of the steam brake about one-third less than when all the shoes were in place; that the water brake upon the engine was not in working condition; that when the train started from Spokane there was five employes of defendant upon it, viz. Crowley (the conductor), Sissler (a brakeman), a man known as the 'Swede' (a brakeman), Hill (the engineer), and plaintiff (the fireman); that, when the train reached Rockford, Crowley and the 'Swede' got off, and remained at that station; that at that time the train consisted of 18 flat cars loaded with gravel, 10 of which were then unloaded, and 8 cars were left upon the main track, adjoining the west end of the depot platform; that Sissler, who was a brakeman, was put in charge of the train, and, with the engineer and fireman, returned to Freeman with the train, under instructions to take the 10 cars to Conductor McPherson, at Freeman, and then to couple onto the loads of gravel at the side track, and the loads which had been brought up the grade, and bring them to Rockford,-- 'to let them come, and that the main line would be clear;' that at Freeman the parties took the loads, as per instructions, and started to return to Rockford with 24 flat cars loaded with gravel; that the distance from Freeman to Rockford is about 8 miles, with a down grade; that the grade commences about one-fourth of a mile west of Freeman, at which point it is about 90 feet to the mile, and decreased, going into Rockford, to 53 feet to the mile; that about one mile from Freeman, after entering the down grade, and while running within the limit of 20 miles an hour, as allowed by the rules of defendant, the engineer called for brakes three times; that the second time he called for brakes he applied his steam brake, and set the tank brake; that the train them became beyond the control of the men, and ran away.

The plaintiff, among other things, testified as follows: 'When we left Freeman, I presume about a mile and a half or so, the engineer whistled for brakes. I seen the man who had charge of the train, and who was on the hind car, but I didn't see him make any attempt to set the brakes at that time. The engineer whistled for brakes again. I then seen the brakeman working on a brake, setting it. The engineer whistled for brakes again, and the brakeman stuck up his hand. * * * He whistled for brakes again, but we were going at a faster rate of speed then. The engineer then tried to set his steam brake, and he says: 'There is no use. Everything is gone. The steam brake is out of order, and we can't hold it.' I went and tried to set the tank brake, and that didn't work. So the engineer, he gets off the seat, and he tries to set it, and it did not work, so he told me * * *. He said, 'Get on the seat box, and look out for danger.' We kept whistling all the way down the hill, to warn the men ballasting the track where the gravel was. We came about two hundred yards of Rockford, and we seen Crowley trying to flag us. We were going the, I presume, at the rate of sixty miles an hour, if not more. Before we came to Rockford, there is a big curve going into Rockford; and we could not see them until we came around the curve, because there was a big pile of cord wood, about twelve or fifteen feet high, obstructing the view. So, when we came around the curve, we saw those cars on the main line; and we though we were in danger, and I got ready to jump off. I jumped about thirty feet, I think, from the end of the platform, and I struck the ground; and it just rolled me like a bunch of rags, and I struck the platform. It threw me up into the air, and threw me on top of the platform, about eight feet from the end of it.'

In reply to questions, he answered as follows: 'Q. Did you hear John Crowley say anything that day about the direction of this train; generally, about the operation of these gravel trains hauling gravel between these points? A. Well, he came up to the engine, and he says to the engineer, 'They have pulled off one of my crews;' and he says, 'Mr. Sissler will take charge of this train.' Q. What running orders, if any, on that occasion, did you hear Mr. Sissler give, after that time, for the running of this train? A. He says: 'I got orders from Crowley for us to take these empties to Freeman; and engine 42 is there with loads, waiting for us. We will give them our empties, and take their loads, and also the loads on the side track.' And he says: 'Let them come. In the course of his testimony, he gave an account of the injuries he received, which was substantially as alleged in the complaint.

Hill the engineer, with reference to the accident, testified as follows: 'My instructions from Crowley and Sissler were to take these ten cars to Freeman, and turn the empties over to Conductor McPherson. * * * I was to couple onto loads on the side track, and the loads which had been brought up that grade, and bring them to Rockford, and let them come, and he would have the main line clear. * * * After leaving Freeman, we pitched over the summit, and got perhaps a mile down the grade, and I whistled for brakes from Sissler. He was the only man there at the time, and I called for brakes, and he put up his hand in such a manner (indicating); and I called three times for brakes, altogether. When he stuck up his hand, he was sitting on the brake mast on the last car; and whether he set any more brakes, of course, I cannot say, because, with the ballast train coming along at that speed, would naturally obstruct the view by the dust. I was about a mile and a half from Rockford when I called for brakes the last time. I was about three miles from Rockford when I saw Sissler for the last time. * * *...