252 F. 25 | 6th Cir. | 1918
The parties will be designated here as in the trial court. McGuffey, the deceased, was killed in the course of his employment as member of a switching crew in the railway company’s yards at Oakdale, Tenn. His administratrix recovered judgment under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, “35 Stat. 65 [Comp. St. 1916, §§ 8657-8665]), which concededly applies.
East of and parallel with the repair or “rip” track in the northern section of the yards was a series of other tracks, the westerly of which was No. 6. From the frog of the switch connecting with track No. 6 the “rip” track descends to the northerly at a grade of about 1 per
Against a general motion by defendant for a directed verdict, and in denial of the requests later referred to, the trial court submitted to the jury three asserted grounds of defendant’s negligence: (1) In respect of placing and leaving the loaded scrap-iron car on the repair track at the time and in the location in question; (2) in respect of the alleged speed at which the switched cars were kicked onto and down the repair trade; and (3) in that the foreman of the switching crew, after learning of the position of the scrap-iron car, and that the switched cars were going rapidly down the repair track, failed to effectually warn deceased of. the impending collision and to give him opportunity to escape.
That deceased was on one of the switched cars when they collided with the scrap-iron car, and was killed by that collision, must, for the purposes of this review, be taken as established. It is necessarily so found by the verdict, in view of the court’s charge; and, although there was substantial evidence to the contrary, the verdict in that respect is sustained by substantial testimony. As the record is made up, the judgment should be affirmed, provided defendant’s requests to exclude from consideration both the first and third submitted grounds of negligence were properly denied.
The testimony relating to each of these questions was in sharp conflict; upon either it would support a verdict in defendant’s favor. But it scarcely need be said that on the motion for an instructed verdict, wholly or in part, the trial court was bound to take the view of the evidence, and of the inferences deducible therefrom, most favorable to the plaintiff, and that we cannot reverse merely because we may entertain a different view or draw different inferences than accepted by the jury.
| 2] It appeared, however, that the repair track was frequently full of cars at night, that just before the movement in question Hutson, the switching foreman, had followed down the main track the first two cars of a cut of seven then being distributed, and that thereupon the deceased, who was a switchman under the foreman, took charge of the kicking onto the repair track of the next two cars (an empty box car. followed by a loaded gondola); and defendant contends that deceased thus took the sole responsibility for the movement, and not only assumed the risk of collision with the other cars, but was negligent. in not looking out for his own protection by ascertaining the presence of the scrap-iron car on the repair track, as well as by kicking the cars down the grade instead of shoving them down, as the company’s rules required, and that the negligence of deceased was the sole proximate cause of the collision and accident, thereby preventing recovery under the rule of Great Northern Ry. Co. v. Wiles, 240 U. S. 444, 36 Sup. Ct. 406, 60 L. Ed. 732.
But this contention fails to give due weight io the facts which there was evidence tending to sustain: Eirst, that although the deceased, in Hutson’s temporary absence with the cars previously kicked on the other track, was in immediate charge of the movement of the two cars here in question, yet his charge was subject to the direction of Hutson. The evidence, indeed, would warrant an inference (perhaps natural enough without express testimony) that the foreman had himself instructed the kicking of the two cars down the repair track; for, while another member of the crew testified that “McGuffey was lining up the cars” and that it was the same “for McGuffey. to tell me as it was for Hutson to tell me, and McGuffey knew where the cars were going as well as Hutson did,” he added, “By the line-úp of the cars is meant instructions as to where they are to go; that Hutson had fold him where.”
The inference that the foreman saw the scrap-iron car and called to deceased to get off, or look out, as fár back as 100 feet from the rip track switch, is perhaps not the more natural one; and if the car was not seen until deceased was but 100 feet from the point of collision a negligent failure to warn could scarcely be inferred. But we are constrained to the view that it was open to the jury to draw the
Without reference, therefore, to the question of alleged excessive speed of the kicked cars, the judgment below should be affirmed.
This witness, who was yard foreman “off and on” for several years, partly before and partly after the accident, and was regular yard foreman at the time of the trial, testified 1hat “it was customary there at the time to kid? cars into tills rip trade at night, but sometimes they would be shoved in,” ami that “we were handling these two can: that night just as we were always accustomed to handle them, and just as Mdfiiffey was accustomed to handle them, and he was riding them just as he had rode them many times before.”
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