216 F. 499 | 8th Cir. | 1914
This is an action to recover damages for injuries sustained by the defendant in error, who will be referred to herein as the plaintiff, while in the employ of the plaintiff in error, referred to herein as the defendant, due to the alleged negligence of the defendant. The petition alleges that on the 12th of March, 1913, he was directed to go under a car standing in defendant’s yards for the purpose of making repairs on the same; that the body of the car was raised several feet from the ground, and each end of the car body was resting on supports or wooden timbers; that while he was under the car an engine operated by the defendant ran into the car, knocked it from its supports, causing it to fall on plaintiff, thereby injuring him. The negligence of the defendant is charged to con
The evidence on the part of the plaintiff was that he was in the employ of the defendant, and on the day of the accident, he was assigned to work underneath a car belonging to a certain railroad company, which car had been sent to defendant’s plant for repairs; the car had been taken off the wheels and put on two horses or timbers about 20 inches high, one near each encl of the car; the car leaned somewhat to one side, so that one edge of it was much closer to the ground than the other; the position of plaintiff, while at work under the car was such that he could not see whether other cars were approaching or not; he was driving rivets into the bottom of the car; a young man named Senciboy was his helper; Senciboy stood inside of the car while plaintiff was working on it; Senciboy called out a warning to him that a car was coming in on the track and was going to hit the car on which plaintiff was at work; plaintiff attempted to escape, but before he could do so the car on which he was working was struck by the other car, inflicting the injuries complained of.
The cause of the accident was that the switching crew in the employ of the defendant was handling an engine and a car attached thereto, intending to bring the same into the yard where plaintiff was at work; the engine was headed north, but was backing toward the south, having one box car immediately south of it, which it was pushing into the yard; between the gate and the car where plaintiff was at work there stood a box car, which was a few feet inside of the yard and a short distance north of the car under which plaintiff was working and on the same track. The plan of the switching crew was to enter the yard above the car attached to the engine, run against the box car standing north of the one where plaintiff was at work, draw it out of the yard, and switch it away, replacing it with the car that was attached to the engine. The engine approached very slowly, the bell being rung at the time by the fireman; when the car which was coupled to the engine bumped against the car which the engine was to draw out of the yard the coupling missed, and one of the members of the switching crew gave a stop signal which the engineer immediately obeyed; the knuckle on the car was then readjusted by the switchman and a come ahead signal was given; the engineer opened the throttle, moved slowly forward until he bumped into the car the second time, received a second stop signal, and immediately shut off steam and started to apply the brake, but as he did so the throttle flew open, permitting steam to come into the cylinders of the engine, and thereby caused the engine to make a sudden lurch forward with such violence as to force the car nearest the one on which plaintiff was working toward the south, striking the car where
On the part of the defendant, Mr. Cowell testified that he had never instructed Mr. Overpeck to make any reports to Buster, that Buster was merely a subordinate employé in charge of the roundhouse at night, and that if any written reports had been made by Mr. Over-peck and left at the roundhouse they would have been received by him. Mr. Buster denied positively that Overpeck had either made written or oral reports to him concerning the condition of the spring at any time preceding the accident.
The defendant also introduced evidence tending to show that the spring in the throttle on that engine was in perfect condition at that time; that it has never been ciianged since the accident; that it worked perfectly immediately before and after the accident, when it was tested by the defendant’s representatives, has been used ever since, and was still in perfect condition at the time of the trial. Mr. Cowell and the master mechanic of the defendant, Mr. Cribben, examined the spring while Mr. Overpeck was on duty on the engine, and after a most thorough test found it in perfectly good condition.
There was also evidence of experts to the effect that such springs as the one in question usually lasted the lifetime of the engine on which they are placed. They also testified that the rules of the defendant company required that when anything was wrong with an engine, upon discovery by the engineer, it was his duty to report it to the head engineer, Mr. Cowell, and if Mr. Cowell was absent from the roundhouse the written report was to be made out by the engineer and left at the roundhouse for Mr. Cowell. It was also testified that the company did not carry in stock such springs as the one which it is claimed caused the accident, nor could one be obtained from any other place than the locomotive works which had manufactured the locomotive. Mr. Evans, another engineer, testified that he had handled the same engine on the night preceding the accident, and also' on the night following, and that the spring worked perfectly both nights.
“Liability is charged by the plaintiff by reason of the fact that the throttle of the engine which caused the accident had been permitted to remain in a defective condition for about three weeks; that defendant was advised of this defective condition, and negligently failed to repair the same, or to take the engine out of service pending repairs.”
Counsel have very ably argued the question whether Mr. Buster, by reason of the fact that Mr. Overpeck testified that he had been instructed by Mr. Cowell to report to him any defects in the engine during’his (Cowell’s) absence, was a vice principal, and a report made to him and his promise to have the repairs made was notice to and a promise of the company. The only testimony on the part of the plaintiff that such instructions were given is that of Mr. Overpeck, which was positively denied by Mr. Cowell and Mr. Buster. But as that was a question of credibility of the witnesses, and giving the strongest probative effect to the testimony of the party against whom it is sought to have a verdict directed, we would not feel at liberty to reverse a judgment submitting that question of fact to the jury. We do not deem it necessary, in view of the conclusions reached, to determine whether Mr. Buster would, under these circumstances, be a vice principal or merely a fellow servant.
In view of this evidence, we are of the opinion that Mr. Overpeck’s testimony is positively contradicted by the physical facts, and therefore the court should have granted the request of the defendant for a directed verdict in its favor.
The judgment is reversed, with directions to grant a new trial.