257 F. 667 | 6th Cir. | 1919
Action under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. §§ 8657-8665]) to recover damages for personal injuries sustained by plaintiff below, Schleenbaker, on the 8th of September, 1915, and while in the employ of the defendant railway company. Admittedly defendant was at that time operating as a common carrier of passengers and freight in interstate commerce by railroad, and plaintiff was the conductor of one of its freight trains. This train was then running on a west-bound trip between Kent and Marion, Ohio, and pursuant to orders previously given by defendant a freight car was coupled to the rear end of the caboose of plaintiff’s train at Ashland. The car thus becoming the last one of the train had no drawbar or coupler at its
Among the negligent and wrongful acts charged in the petition as causing the injury were violations by defendant of the federal Safety Appliance Acts (Act March 2, 1893, c. 196, 27 Stat. 531, Act March 2, 1903, c. 976, 32 Stat. 943, and Act April 14, 1910, c. 160, 36 Stat. 298 [Comp. St. § 8605 et seq.J), in transporting the defective car, which ran over plaintiff’s arm, and in maintaining an improper grabiron on the caboose. At the close of all the evidence motion of defendant to direct a verdict in its favor was denied; and the court in charging the jury instructed them that only three issues were to be considered: (1) Whether the transportation of the defective car was the proximate cause of plaintiff’s injury; (2) whether the grabiron in question had the required minimum clearance, two inches; and (3) if it had not' whether the injury was proximately caused by such defect in the grab-iron. The court further charged that if the jury should find the affirmative either of the first or of the second and third of the issues, the plaintiff was entitled to recover. Verdict was returned and judgment rendered for plaintiff, and defendant seeks reversal under the writ of error.
“The true rule is that what is the proximate cause of an injury is ordinarily a question for the jury. It is not a question of science or of legal knowledge. It is to be determined as a fact, in view of the circumstances of fact attending it.”
Our court has had frequent occasion to apply this rule, as, for example, Winters v. Baltimore & O. R. Co., 177 Fed. 44, 50, 100 C. C. A. 462; Erie R. Co. v. White, 187 Fed. 556, 559, 560, 109 C. C. A. 322; Hales v. Michigan Cent. R. Co., 200 Fed. 533, 537, 118 C. C. A. 627; Heskett v. Pennsylvania Co., 245 Fed. 326, 329, 157 C. C. A. 518.
The judgment is affirmed, with costs.