Wood v. Louisville & N.R. Co.

• Decision Date: 02 June 1898
• Docket Number: 3,130.
• Citation: 88 F. 44
• Parties: WOOD v. LOUISVILLE & N.R. CO.
• Court: U.S. District Court — Western District of Tennessee

88 F. 44

WOOD v. LOUISVILLE & N.R. CO.

No. 3,130.

United States Circuit Court, W.D. Tennessee, Eastern Division.

June 2, 1898

A brakeman who is struck by a cattle chute, while climbing the ladder of a passing car, is not negligent, although he did not see the chute until he was struck.

The plaintiff was a switchman on the Louisville & Nashville Railroad, and had been so engaged for about three months on a gravel train. Being transferred to the position of middle brakeman on a freight train, which was switching cars on the railroad side tracks, and while in the discharge of his duty climbing one of the ladders to the top of the car, he was raked off by a cattle chute, which was so near to the track that there was not room for his body to pass without being struck in the manner in which it was. The injury crushed the toes of his left foot in such a was that he lost all the toes by amputation, except the great toe, of that foot, and his right foot was crushed entirely off, just above the ankle, so that he is permanently crippled in both legs. There is a dispute in the testimony as to whether the close proximity of the cattle chute to the rails of the track was the result of the original construction, or whether it had become from long disuse so dilapidated that it had got out of plumb, and for that reason was too close to the track. There was also some dispute in the testimony as to the exact distance between the mouth of the chute and the track, and, as the structure has since the accident been torn down, it is impossible to determine with accuracy just the number of feet and inches the testimony of the witnesses ranging from an estimate of eighteen inches to four feet. Defendant's witnesses swore that this chute was constructed like all other cattle chutes on the line. Whatever the accurate distance from the track was, the fact is that the plaintiff, while climbing the ladder, was knocked off. The structure had been there for a number of years, and had been for some time out of use, but was left standing as described by the witnesses. The plaintiff swears that he did not know the chute was there had not observed it while at work, and that he did not on the occasion of his injury observe it at all. The jury found a verdict in favor of the plaintiff for $8,000.

J. W. E. Moore, for plaintiff.

A. D. Bright, for defendant.

HAMMOND J. (after stating the facts as above).

The verdict of the jury is conclusive as to the negligence of the defendant company in the construction of this cattle chute. It is not a question of a few inches more or less of proximity to the track, nor is it a question of the different sizes of men called upon to operate in or near it, as to whether they could comfortably pass between the mouth of the chute and side of the car while the car was being loaded or unloaded from the cattle pens, as described by the witnesses. Neither is it a question of avoidance, in climbing the ladder, of the too great protrusion of the body by the skillful or unskillful use of the ladder. It seems to me quite unreasonable to demand that a brakeman, intently engaged in moving over a running freight train, and climbing the ladders put there for that purpose, shall make a nice calculation of inches as to the protrusion of his body, so as not to strike an obstruction to which his attention is not specifically called, and which is of such a nature that he would not be required to be on the lookout for it unless particularly informed about the danger. The case of a bridge across the road or an overhanging roof presents a different question. Either is a structure the danger of which is always apparent, and against which the brakeman must be constantly on his guard; but these cattle chutes along the road may be located at any place, and the primary duty of every railroad company in their construction is to see that they are not so close to the track as by any possibility to result in such an injury as this. It is only a matter of the length of the bridge that must connect the cattle chute with the floor of the car which is being loaded or unloaded. Of course, the cattle can be more readily controlled in passing in or out of the car to or from the chute the shorter this distance is, but by giving a few inches of extra...