Winters v. Baltimore & O. R. Co.

• Court: U.S. Court of Appeals — Sixth Circuit
• Citation: Winters v. Baltimore & O. R. Co., 177 F. 44 (6th Cir. 1910)
• Decision Date: 04 January 1910
• Docket Number: 1,924.
• Parties: WINTERS v. BALTIMORE & O.R. CO.

177 F. 44

WINTERS v. BALTIMORE & O.R. CO.

No. 1,924.

United States Court of Appeals, Sixth Circuit.

January 4, 1910

On Petition for Rehearing, March 29, 1910. [Copyrighted Material Omitted]

Frank S. Monnett, for plaintiff in error.

Frank A. Durban, for defendant in error.

Before WARRINGTON, Circuit Judge, and McCALL and SANFORD, District judges.

SANFORD District Judge.

This is an action brought by the plaintiff in error, Winters, against the defendant railroad company, to recover damages for personal injuries sustained by him through the alleged negligent derailment of a car in a work train of the defendant on which Winters was riding. At the close of the testimony offered by the plaintiff, the defendant moved the court to direct a verdict in its favor on the ground, in effect, that the testimony failed to establish its negligence and showed that the plaintiff was guilty of contributory negligence. The court, while of opinion that there was evidence to go to the jury of the defendant's negligence sustained the motion on the ground that the plaintiff had been guilty of contributory negligence and directed a verdict in the defendant's favor.

The errors assigned all relate to the action of the court in thus directing the verdict. The material facts appearing from the testimony are as follows:

The plaintiff, Winters, was a section hand in the employ of the defendant company as a member of a 'floating gang' of about 20 men engaged in repairing track at different points along the line of road, in a section about 33 miles long extending from Columbus to Newark, Ohio. In doing this work they were carried from point to point on the road in a work train, consisting of an engine, caboose, and two box cars, or camp cars, and other cars when needed. This work train took the men back and forth to and from Pataskala, their headquarters, where they stayed at night. The plaintiff, who had been a member of this gang several months, testifies that he 'most generally rode any place' on this train; that whenever they got ready to go, the section foreman would tell them to 'get on,' without saying where, and they got on wherever they could; that he and the other men rode any place on the train, and rode on top of the cars about all the time when going backwards and forwards; that this was done in the presence of the section foreman, who himself rode up there with them, while the train conductor would also always see them up there, although he did not ride up there himself; and that they had kept this up all summer.

On the day of the accident, November 15, 1905, the work train had been hauling stone in flat cars at Union Station, but in the afternoon took off the flat cars at Summit Station, leaving only the engine, caboose, and the two camp cars, and went to Taylor's. At Taylor's the work train backed in on a switch about three-fourths of a mile in length leading to a tile or brick plant, and ran northward on this switch in order to get some Italian laborers working in there, ditching the track; the purpose being after getting them to go back home to Pataskala, which was about eight miles away.

In backing in on this switch the engine was farthest south; next, the caboose; next, the camp car of the Italians; and, last, the camp car of the 'floating gang,' which was at the north or front end of the train as it backed in.

In running from Summit to Taylor's, Winters had ridden in the caboose; but when the train stopped to let them in on the switch he got out of the caboose and climbed up on top of the camp car of his gang, at the north or front end of the train, as it backed in. He found the brakeman on top of this car, and they continued to ride on top together. All the other members of the work crew were in their camp car. It was then about 4:45 p.m., and just about dusk. The train was running about five or six miles an hour. At the time of the accident the train was running northwestwardly. Winters and the brakeman were looking west toward the brickyard. When near the brickyard the brakeman said there was a plank on the track, 'right onto it, the way he talked,' and halloed, 'jump.' The brakeman then jumped from the car, and Winters jumped after him in the same direction. The north or front trucks of the camp car on which he was riding were thrown off of the track; and while the brakeman jumped clear of the train, Winters landed between the tracks, and his leg was caught about the knee, and run over by the south trucks of the car, which did not leave the rails; the train stopping in a short distance after the north pair of trucks left the rails. His leg was so badly crushed that it had to be amputated. The other members of the 'repair gang' riding inside of the camp car appear not to have been injured.

A subsequent examination of the track showed that just at the point where the switch track was crossed by a wagon road that led across to the brickyard, part of the material in the crossing had been carried off to the north, including a plank six or eight feet long, about two inches thick, and six to eight inches wide, which was found lying crosswise of the track, across one rail, at the north end of the camp car, from six inches to a foot from the north trucks; this plank having some splinters knocked off and showing fresh wheel marks. It further appeared that the switch track leading from Taylor's to the brickyard had been there for some five or six years, since the brick plant was started, and was used by the railroad company every day to take brick out from the brick plant, running some five or six trains every day. The road crossing at which the derailment occurred had been there for some years. It was the crossing that gave access to the brick plant, and was also used generally by the people who lived across the switch track, and crossed daily by a number of foot passengers and two or three wagons.

A short time prior to the accident this switch track had been raised at this point by the gang to which Winters belonged. They had worked on the track a couple of weeks altogether, off and on, and had worked close to this crossing for several days, raising the track along there from six inches to a foot. One witness states that they had been working there from two weeks to eight days before the accident; another that they had worked there up to the time of the accident.

It further appeared that there had formerly been thrown in this crossing planks of different lengths, ties, and fence rails; that when the 'floating gang' began work at the crossing they threw this material out, and after they had raised the track they put back the old planks, ties, and fence rails in the crossing, without spiking or nailing down either the planks or fence rails; and that after this repair work had been done these planks and rails remained as before, so loose that when a buggy passed over the crossing they would flop up and down, and would give up and down when a footman passed over. There is evidence that they were loose in this way for several days before the accident, and one witness testifies that on the morning of the accident the condition of these loose planks and rails was such that when he crossed with his buggy he did not feel like riding across and got out and led his horse over. Winters himself states that when the foreman of the 'floating gang' had them throw back the planks, ties, and rails in the crossing, he 'never heard him order it spiked down. ' It does not appear, however, how many days this was before the accident, or whether Winters was one of the last men to work there, or whether he knew that no further work had been done at the crossing since that time, or whether this track was inspected by any other employes of the company after the 'floating gang' finished working there.

Under these facts we are of opinion that the court was in error in directing a verdict in defendant's favor.

1. There was clearly evidence tending to show negligence on the part of the defendant in leaving this track in the condition in which it was at the time the derailment of the car occurred. The court below, in the opinion on the plaintiff's motion for a new trial, expressed, inferentially at least, the opinion that the plaintiff was a passenger at the time of the accident, and that the proof of the derailment and the plaintiff's injury were prima facie proof of the defendant's negligence. The defendant earnestly insists, however, that the plaintiff is not to be regarded as a passenger at the time of the accident, but that under the doctrine laid down by this court in Louisville & N.R. Co. v. Stuber, 108 F. 934, 48 C.C.A. 149, 54 L.R.A. 696, he must be regarded as being carried to and from his place of work as a servant of the railway company, and not as a passenger, and that hence, under the doctrine of Texas & P.R. Co. v. Barrett, 166 U.S. 617, 17 Sup.Ct. 707, 41 L.Ed. 1136, and Patton v. Texas & P.R. Co., 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361, as the plaintiff occupied the relation of an employe at the time of the accident, no presumption of negligence arises from the mere fact of the accident.

While it seems fairly inferable from the facts appearing in the record that the members of the 'floating gang' were being carried to and from their place of work as a necessary incident to the discharge of the duties of their peculiar employment, and not for a purpose disconnected with that employment, so that under the doctrine of the Stuber Case they should be regarded as being carried as employes, rather than as passengers, we are of opinion that, independently of this question and of any presumption of negligence that might have arisen from the relation of carrier and passenger, there was sufficient affirmative evidence tending to...