Wheelock v. Freiwald

• Decision Date: 13 September 1933
• Docket Number: No. 9660.,9660.
• Citation: 66 F.2d 694
• Parties: WHEELOCK et al. v. FREIWALD.
• Court: U.S. Court of Appeals — Eighth Circuit

66 F.2d 694 (1933)

WHEELOCK et al. v. FREIWALD.

No. 9660.

Circuit Court of Appeals, Eighth Circuit.

July 19, 1933.

Rehearing Denied September 13, 1933.

Charles M. Miller, of Kansas City, Mo., for appellants.

Roy W. Rucker, of Kansas City, Mo. (Clif Langsdale, of Kansas City, Mo., on the brief), for appellee.

Before KENYON and GARDNER, Circuit Judges, and DEWEY, District Judge.

GARDNER, Circuit Judge.

This is an action brought by appellee as administratrix of the estate of M. J. Freiwald, deceased, against appellants, as receivers of the Chicago & Alton Railroad Company, to recover damages on account of the death of M. J. Freiwald. The action is bottomed on the Federal Employers' Liability Act (45 U. S. C. §§ 51-59 45 USCA §§ 51-59).

The parties will be referred to as they were designated in the lower court.

At the time of the accident resulting in the death of Freiwald, he was in the employ of the defendants as a switchman, and was working as a member of a switching crew in the Kansas City, Mo., yards of defendants, engaged with other members of the crew in shifting cars from and onto various tracks in the yards. Besides himself the crew consisted of another switchman, an engineer, a fireman, and a foreman. Freiwald had had many years' experience as a switchman.

The switch tracks involved in this action run north and south and slope slightly to the north. They were numbered 1 to 18, inclusive, and were cut or traversed by two lead tracks, from which each of the switch tracks might be entered. The particular lead track here involved crossed all the switch tracks in the yard at the south end of the yard. Just prior to the movement of the cars in which Freiwald was fatally injured, he had assisted in placing a box car loaded with lumber on switch track No. 11. Following this movement the crew picked up one refrigerator car and four loaded oil tank cars. They were on track 3 or 4 and were moved to the lead track so that the tank cars might be shunted onto switch track No. 11. The refrigerator car was next to the engine, which was pushing the cars in a northerly direction. The kicking or shunting operation is described as follows: The foreman gives a signal indicating the cars which he desires kicked onto the switch track. Thereupon the switchman following the cars operates the pin lifter, detaching or uncoupling the designated number of cars. The foreman then signals the engineer to shove or move the cars ahead. When the engineer has attained a sufficient speed so that in the opinion of the foreman the cars desired to be cut off will roll to the place desired on their own momentum, he gives the engineer a signal to stop, and in compliance with this order the engineer stops the engine, and the cars which have been cut off roll onto the proper track.

In the switching movement here involved the foreman gave a signal to the engineer to stop, but the engineer did not see it. Two signals were given before the engineer stopped the engine. The foreman testified that the cars were moving about five miles an hour when he gave the first signal to stop and gained speed between the first and second signals, and gained very little speed between the second and third signals. He estimated that four to five seconds elapsed between the first and third signals. As the cars passed north, Freiwald was standing close to the switch from the lead track onto switch track No. 11. He threw that switch, and as the tank cars were passing the foreman directed him to "look out for the carload of lumber." This was understood to be an order for Freiwald to mount the tank cars and set the brake. The foreman, called as a witness for plaintiff, testified that he gave this order because the oil was heavy, and if the four tank cars should hit the one car of lumber, even though they were not going fast, the impact was liable to shift the lumber. He testified that, if the engineer had stopped on his first signal, the tank cars would have gone down there to contact the lumber car.

Freiwald, in response to the foreman's order, mounted the north end of the north tank car as it was passing him, in order to set the brake. The point at which he mounted the moving tank car was about 300 feet from the box car of lumber which had already been switched onto track No. 11. This was the last seen of Freiwald alive. His body was later found lying on track 11, midway under the fourth or south tank car.

The accident occurred about 6:40 a. m., March 17, 1929. It was daylight, but there was some smoke in the yards coming from the engines in use. It was a damp morning described by one witness as "not exactly foggy, but kind of misty." The dampness and dust had accumulated on the running boards of the tank car on which deceased stood in setting the brake, and this running board carried imprints of his heels. A witness, in describing these marks, said: "In examining this car we could see heel — his heel prints where they had slipped out like that (indicating) off of the running board, these heel prints being right near the ratchet of the brake on the inside of the car just about over the drawbar, or as close to the ratchet as he could put them. They were * * * just about half way between the brake ratchet and the drawbar, right where he would be standing to have hold of the brake, and you could see that both heel prints slanted out right off of the running board here."

At the time the foreman directed Freiwald to board the tank car Freiwald was walking from north to south, so that the tank cars were moving toward him. After the tank cars came to rest, the north end of the north tank car was south of the south end of the car of lumber, the distance intervening being variously estimated at from three to forty feet.

A Mr. Nuzum, called as a witness for plaintiff, was the only witness testifying that the tank cars hit the lumber car. He testified that he saw a movement of tank cars, which he assumes were the cars in question, moving along between ten and fifteen miles an hour before they hit the box car. While not an employee, he was passing through the yards, and had been a railroad man of some experience. His observation of the moving cars was at an angle as they approached him. He testified that he saw a man on the tank car, apparently setting the brake, or working with the brake. At that time he was about one hundred yards from the cars. He could not see the man on the tank car at the time of the collision. The box car with lumber in it obstructed his vision so that he could not see the north end of the tank car before the collision. The testimony is somewhat obscure as to when his vision was obstructed, but we construe his testimony to mean that in his judgment he saw the north end of the tank car up to a point where it was about two car lengths from the south end of the box car of lumber. He did not see the man on the tank car at the time of the collision.

An examination after the accident disclosed that the brake on the north end of the tank car was set. An assistant yardmaster in the employ of defendants, called as an expert witness, testified that, after Freiwald had set the brake, the next thing, in the proper and ordinary discharge of his duty, was to have gotten off the car, or, if the car was moving too fast, he should, in the usual course of his work, have gone to set another brake. This testimony is not disputed.

After the accident, an examination disclosed that there was nothing wrong with the box car containing the lumber on track No. 11. The lumber had not been shifted, and there was testimony to the effect that ordinarily, if the impact had been of sufficient force to cause the lumber to shift in the box car, the end of the car would have broken out.

At the close of all the testimony defendants moved for a directed verdict, which motion was overruled, and the case was submitted to the jury, the jury returning a verdict for plaintiff. From the judgment entered thereon, defendants have appealed. The appeal presents for consideration three questions: (1) Was there substantial evidence that the death of plaintiff's intestate was caused by defendants' negligence; (2) was the risk causing Freiwald's death assumed by him as an incident of his employment; and (3) was the plaintiff the surviving widow of Freiwald?

The Federal Employers' Liability Act does not make an employer an insurer of the safety of its employees, but to entitle plaintiff to recover the defendants must have been guilty of some act of negligence which was the proximate cause of Freiwald's death. Baltimore & O. R. Co. v. Berry, 286 U. S. 272, 52 S. Ct. 510, 76 L. Ed. 1098; Atchison, T. & S. F. R. Co. v. Toops, 281 U. S. 351, 50 S. Ct. 281, 74 L. Ed. 896; Coyne v. Union Pac. R. Co., 133 U. S. 370, 10 S. Ct. 382, 33 L. Ed. 651; Reese v. Philadelphia & R. R. Co., 239 U. S. 463, 36 S. Ct. 134, 60 L. Ed. 384. Recognizing this rule, plaintiff contends that it was negligence for the foreman to order Freiwald to board the moving tank car, because the foreman should have known that a collision would occur. The case was submitted to the jury on that single issue of negligence.

There is nothing in the evidence tending to show that it was unusual or out of the ordinary for a switchman to mount a moving tank car to set the brake. Freiwald was an experienced switchman and knew, we must assume, not only how the work undertaken by him was ordinarily performed, but possessed, we must assume, the ordinary skill and ability to perform such work. It is contended, however, that the evidence tended to show that the cars were moving at an unusually high speed when the order was given. The foreman, testifying for plaintiff, testified the only reason he gave the order to set the brake was to check the speed of the tank cars so as to avoid damage to the box car loaded with lumber. A bumping or collision of these cars with the lumber car was to be anticipated. There is, however, nothing to indicate...