294 F. 57 | 1st Cir. | 1923
This was an action to recover for the death of Glen E. Gray on October 13, 1919, at Lunenburg, Vt. Gray was head brakeman on one of the defendants freight trains, running from Bartlett, N. H., to St. Johnsbury, Vt. At the trial the defendant offered no evidence, and at the close of all the evidence its motion for a directed verdict was allowed on one or all of three grounds:
(1) No evidence of negligence.
(2) Risk assumed.
(3) Cause of the accident merely speculative and conjectural.
The evidence would have warranted the jury in finding:
That Gray was a healthy, competent, careful,-and experienced brakeman, 30 years old; that he was in the cab of the engine as it approached Lunenburg station; that at that point the track curves in towards the station, so that the momentum of the train would carry the engine and tender as far towards the platform of the station as the flange of .the wheels would permit; that it was Gray’s duty, as the train slowly drew in towards the station, to jump from the engine to get instructions from the local station agent as to work there to be done; that it was bright daylight, between 2 and 3 o’clock in the afternoon, dry on the steps and on the station platform upon which he tried to alight; that, as the train approached at proper speed, Gray backed down the steps at the end of the tender, grasping, the grabiron on the engine with his right hand and the grabiron on tire tender with his left hand; that the fireman saw his right hand leave the grabiron in natural fashion, and, shortly after, his left hand suddenly slide rapidly down the other grabiron in such an unusual fashion that the fireman knew something was wrong, and shouted to the engineer to stop, who thereupon made “an emergency stop;” that Gray was found between the track and the end of the platform, about opposite the women’s waiting room door in the station, his right foot severed above the ankle, his left leg broken, and so injured that he shortly died.
That after the accident scraping marks were found, 1% to 2 feet long, on the ends of the platform planks, perhaps 30 to 40 feet easterly from the point where Gray was picked up, and that beyond these marks there were scraping marks on the ground; also that beyond the marks on the end of the platform planks there were marks on the platform itself “something like a scraping on top;” that Gray wore heavy work-shoes of about 8% size.
If the accident had been caused by his jumping in the usual fashion from the step, slipping on the platform, and then falling under the train, his left hand would not have slid down the grabiron in such unnatural fashion as to signify to the fireman that something was wrong. The movement of his hand was consistent with his having been pulled off the step, and inconsistent with his having made a miscalculated or unfortunate jump.
We cannot say that it is not a permissible inference that Gray was thus trapped to his death by having his foot caught between the step and the waving cqptour line of the platform. The relation between the moving step and the edge of the platform — in and out and up and down — taken in connection with the sudden and otherwise unexplained movement o'f his hand on the grabiron, might by a jury be found to make the cause of the accident something more than a mere matter of conjecture or guess. If he rested on the outer part of the lower step, on the ball of-his foot, as he naturally and properly would, his heel would project more than 5 inches, so that it might have been caught on the end of the planks and drawn under the platform if, as the engine moved forward, the step was, as related to the platform edge, rising, and also nearing the platform.
These scraping marks on the platform might have been found to have been made by Gray’s shoes, the ones on the end of the planks by his left shoe, and the mark on the top by his right shoe, as he
As noted above, the evidence tended to show that the later type of engine had wider, perhaps lower, steps than the earlier type, thus, as the jury might find, increasing the danger of trapping the foot of an alighting brakeman, as it might have been found that Gray’s foot was trapped, between the step and the edge of this platform.
We think a jury might properly find that the place where Gray was required to stand was of such a dangerous character, due'to the relation of distance and movement between the step and the platform, that the railroad was at fault in setting one to work there. The evidence shows, and it is plain enough as matter of common sense, that, if the defendant was to make use of such a step, the danger might have been easily averted, either by lowering the platform, or by sawing off the'ends of the planks, so as to leave a wider space between the step arid the platform.
It would not be fruitful to analyze and compare the cases most nearly in point. Some of them are Myers v. Pittsburgh Coal Co., supra, and cases cited on page 192 of 233 U. S., 34 Sup. Ct. 559, 58 L. Ed. 906; Choctaw, etc., R. R. v. McDade, 191 U. S. 64, 24 Sup. Ct. 24, 48 L. Ed. 96; Taber v. Davis (C. C. A.) 280 Fed. 612; New York Central v. Gapinski, 249 Fed. 346, 161 C. C. A. 354.
The judgment of the District Court is reversed, the verdict is set aside, and the case is remanded to that court for further proceedings not inconsistent with this opinion, and the plaintiff in error recovers costs in this court.
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