183 F. 722 | 2d Cir. | 1910
(after stating the facts as above). The first question in the case is whether the acts of the defendant constituted a violation'of the federal safety appliance act (Act March 2, 1893, c. 196, 27 Stat. 531 [U. S. Comp. St. 1901, p. 31741,. as amended March 2, 1903, c. 976, 32 Stat. 943 (U. S. Comp. St. Supp. 1909, p. 1143), the relevant sections of which are printed in the footnote.
The first phase of this question is whether the car with the defective coupler was, at the time of the accident, in use within the meaning of the amended act. It is pointed out that the car was not being hauled at the time of the accident, but was standing upon a switch track for the insertion of the knuckle in the coupling apparatus, and it is contended that it was not then being used within the contemplation of the statute. We think upon the authority of Johnson v. Southern Pacific Co., 196 U. S. 1, 25 Sup. Ct. 158, 49 L. Ed. 363, that this contention is not well founded. The car with the defective coupler was not withdrawn from use. Although billed to the repair shop it was
The second phase of the question of the application of the act is whether the car at the lime of the accident was employed in interstate commerce. The car itself does not appear to have been used in any interstate business at the time in question. It was hauled: empty from a New York point to Port Jervis in the same state, and the following day in like condition was hauled to another New York point. But the test of the application of the statute is the train rather than the car and we are of the opinion that there was evidence warranting a finding that the train in which this car moved into Port Jervis included other cars loaded with interstate shipments, and that the train in which it moved out of Port Jervis was of a similar character. Upon these facts it is held that the safety appliance act applies. U. S. v. International, etc., R. Co., 174 Fed. 638, 98 C. C. A. 392; Chicago, etc., R. Co. v. U. S., 165 Fed. 423, 91 C. C. A. 373, 20 L. R. A. (N. S.) 473; U. S. v. Wheeling, etc., R. Co. (D. C.) 167 Fed. 198; U. S. v. Erie R. R. Co. (D. C.) 166 Fed. 352. The fact that the accident occurred during switching operations, and not during either the regular western or eastern movement of the freight train, does not affect the application of the statute. Johnson v. Southern Pacific Co., supra; Wabash R. Co. v. U. S., 168 Fed. 1, 93 C. C. A. 393. Certainly if the car came into Port Jervis in the afternoon in an interstate train, and moved out of Port Jervis the next morning in another interstate train, the character of its use was not changed during the switching operations at night. Rosney v. Erie R. Co., 135 Fed. 311, 68 C. C. A. 155, is distinguished from the fact that in that case there was no proof of use in interstate commerce.
The second question of importance in the case is whether the trial court properly submitted to the jury the question whether the presence of tlie defective coupler was a proximate cause of the accident. It is urged with much force that that which caused the injury to the plaintiff’s intestate was the unexpected movement of the three cars — • an act unrelated to, .and independent of, the act of repairing the coupler. Indeed, were the question to be decided free of authority, a majority of the court would have difficulty in holding that the repair of the coupler was a part of a coupling operation, and bore such a relation to the impact of the cars that the necessity for such repairs was an efficient cause of the accident. But still the reason why Russell went to the place where he was injured was the defective coupler, and if he had not gone there the accident would not have occurred. Moreover, it appears that it was intended to couple the car with the defective coupler to the standing cars as soon as the coupler should be repaired. This being true, and in view of the desirability of uniformity in the decisions of the courts of the different circuits in interpret
The third question in the case is whether the plaintiff’s intestate was, as a matter of law, guilty of contributory negligence. An affirmative answer to this question requires the assumption that the cars which moved down and against Russell moved because he had failed in his duty to brake or block them. But this assumption cannot be made. The cars may have been properly blocked and the blocks loosened by the impact with the car in question shortly before the accident. The question of‘contributory negligence was one for the jury.
The remaining questions raised by the defendant disclose no prejudicial error.
The judgment of the Circuit Court is affirmed.
Act of 1893, § 2: “That * * * it shall be unlawful for any such common carrier to haul or permit to be hauled or used on its lines any ear used in moving, interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled without the necessity of men going between the ends of the ears.”
Amendment of 1903, § 1: “ * * * The provisions of * * * [the safety appliance act] * * * shall apply in all cases, whether or not the couplers brought together are of the same kind, mark or type and the provisions and requirements hereof and of said act relating to train brakes, automatic couplers, grabirons, and the height of drawbars shall be held to apply to all trains, locomotives, tenders, ears and similar vehicles used on any railroad engaged in interstate commerce. * * * ”