Voelker v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 16 June 1902
• Citation: 116 F. 867
• Parties: VOELKER v. CHICAGO M. & ST. P. RY. CO.
• Court: U.S. District Court — Northern District of Iowa

116 F. 867

VOELKER v. CHICAGO M. & ST. P. RY. CO.

United States Circuit Court, N.D. Iowa, Eastern Division.

June 16, 1902

McCarthy Kenline & Roedell, for plaintiff.

W. J Knight, for defendant.

SHIRAS District Judge.

This case came up for trial at a former day of the term before a jury, and it then appeared that the plaintiff was the administratrix of the estate of Emil Voelker, and in that capacity had brought this action against the defendant railway company to recover damages for the death of Emil Voelker, which had been caused by his being caught between two cars in the yards of the defendant company at Dubuque, Iowa, on the 9th of September, 1901, while he was in the employ of the company as a switchman. The evidence showed without contradiction that the defendant company, on the 8th day of September, brought a loaded freight car from Spalding, Ill., through Savanna Ill., to Dubuque, Iowa, the train of which the car formed part reaching the yards at Dubuque about 4 o'clock in the afternoon; and on the next morning the switching crew to which Emil Voelker belonged went to work in the yards, under charge and direction of Mr. Allgeyer as foreman. The car in question was then on what is called the 'East Freight Track,' and the switching crew undertook the work of sending down upon this track and coupling to the standing car other cars brought from the main line, which were taken by the locomotive easterly upon the main line, which were taken by the locomotive easterly upon the main line beyond the switch connecting the east freight track therewith, and then, by a backward movement of the engine, the cars were kicked down on the east freight track. By the direction of the foreman, Voelker rode down upon the first set of cars thus kicked back for the purpose of coupling them to the standing car, and while engaged in endeavoring to fix the coupler upon the standing car so that it would couple with the other cars he was crushed between the cars, receiving injuries which resulted in his death. The evidence proved clearly that the coupler on the standing car was out of order to such an extent that it would not couple automatically or by impact with the other cars, and the evidence justified the finding that when Voelker discovered that the coupler was out of order he immediately undertook to fix it so the coupling might be made, and while so engaged he was caught between the cars, and received the injuries causing his death. Upon the trial of the case the jury returned a verdict in favor of the plaintiff, the damages awarded being $9,000, and the defendant now moves for a new trial on various grounds.

In the charge of the court the jury were instructed that, if the evidence proved that the car in question was brought by the defendant company from a point or station in Illinois to Dubuque, Iowa, then the company, in handling the same, was engaged in interstate traffic, and was subject to the provisions of the act of congress approved March 2, 1893, and entitled 'An act to promote the safety of employes and travelers upon railroads, by compelling common carriers engaged in interstate commerce to equip their cars with automatic couplers and continuous brakes, and their locomotives with drive wheel brakes and for other purposes' (27 Stat. 531). In support of the motion for a new trial it is earnestly contended that neither in the allegations of the petition nor in putting in the evidence did plaintiff base the case on the provisions of the act of congress, and that the defendant was wholly taken by surprise by the action of the court in instructing the jury with respect to the duties imposed upon the company, as a common carrier engaged in interstate traffic, by the provisions of this act. The general rule invoked by the defendant that a plaintiff, to recover, must bring his proof within the allegations of his petition or declaration, is not questioned; but the real inquiry is whether there was such a departure between the case declared on in the petition and the case made by the evidence that the latter will not fairly support the former. Turning to the petition, we find it therein stated:

'That on September 9, 1901, there was, among others, upon said track, a loaded car, which was to form a part of a train then being made up by defendant's switching crew for early movement, under the orders and directions of the defendant's yard master and foreman of said switching crew; that, unknown to plaintiff's intestate, Emil Voelker, who then was employed as car coupler and field man of said switching crew, defendant negligently permitted the coupler on the northerly end of said car to become and remain inoperative and defective in that the link connecting the lever and the pin was loose, broken, and disconnected, so that the pin and coupler could not be operated by means of the lever, and the said coupler was so old, worn, and rickety that the pin could not be raised because of the tumbler pressing and resting against the frame of the coupler, thus making it necessary, in order to operate the coupler, to go between the cars, insert the hand in the coupler, push the tumbler away from the frame, and then raise the tumbler and pull the knuckle open; * * * that by reason of the inoperative and defective condition of the coupler aforesaid Emil Voelker was unable to make the coupling, and the knuckles on both couplers being closed, no coupling was made when the cars bumped together, and the cars separated a few feet on account of the jar; that thereupon, as was his duty, and the usual practice, said Emil Voelker went between the cars to open the knuckle, in order that the coupling might be made by impact, and while thus engaged, and unaware of the danger to which he was exposed, said switching crew, while acting within the scope of their employment and knowing that said Emil Voelker went between said cars to couple the same, negligently caused two or more other cars to be kicked with great force onto said east freight track and against the cars between which said Emil Voelker was thus occupied, thereby causing said Emil Voelker, without any fault on his part, to be crushed to his death between the drawbars on said cars; that defendant and its said employes, without fault of said Emil Voelker, negligently and carelessly moved said cars as aforesaid, while he was thus engaged, without signal from him, although the general practice then and long prior thereto required that said cars be not moved while he was thus occupied between the cars without signal from him, and he believed that said practice would be followed while he was so engaged in the performance of his employment; that defendant knew, or by the exercise of ordinary diligence could and should have known, of the defective and inoperative condition of the coupler aforesaid before the death of said Voelker, and in time to have remedied the same.'

It is claimed on behalf of the defendant that the facts thus recited in the petition were intended to charge only one act of negligence, to wit, kicking back the cars without giving any notice or warning, when it was known to the other employes that Voelker was between the cars, and therefore in a place of danger. The merest cursory reading of the petition shows that such could not have been the thought of the pleader in preparing this petition. Had it been the purpose to make only one charge of negligence, based upon the manner in which the second set of cars were kicked back, it would only have been necessary to aver that Voelker, while engaged in the line of his duty in preparing the coupler upon the standing car, was called upon to place himself on the track at the end of the car, and was thus caught by the other cars; but, instead of limiting the averment of facts to this statement in substance, the pleader at considerable length describes the faulty condition of the coupler, avers that its condition was due to the negligence of the company, and that its faulty condition was what caused Voelker to place himself in a position where he was, liable to be caught if the other cars were moved down in order to make a coupling. Properly construed, the petition charges two acts of negligence as the causes of the accident, not taking into consideration the charge of negligence in the use of a road engine for switching work; and certainly the allegations of the petition were sufficient to give notice to the defendant that it was charged with negligence in that it was using a car upon which the coupler was in such condition that it would not work properly, and would not couple by impact. Upon the trial both parties introduced evidence upon this matter of the condition of the coupler, and much time was taken up in the introduction of testimony upon which to base the claim that the defendant was not duly warned of the fact that the condition of the coupler was an issue in the case as one of the grounds upon which it was charged with negligence.

It is said, however, that the defendant was taken unduly by surprise, in that the court, in the charge of the jury, cited the provisions of the act of congress of March 2, 1893, as applicable to the case, it being claimed that neither in the pleadings nor in the argument of counsel for plaintiff was any reference made to the act of congress. As matter of pleading, it certainly cannot be said that, in order to base a right of recovery on the provisions of the statute, it was necessary to cite the statute or its provisions in the petition. The petition in set words charged the defendant with negligence in having and operating a car upon which was a defective, worn-out, and inoperative coupler, which would not couple by impact. Charging the defendant with negligence was charging that the company had not...