254 F. 787 | 4th Cir. | 1918
Defendant operates a narrow gauge railroad running easterly from Johnson City, Tenn., to Cranberry, N. C., a distance of 34 miles. From Cranberry an affiliated road, known as the Uinville River Railway, extends to Shulls Mills, N. C., a further distance of 24 miles. The only outlet for these lines is Johnson City, where connection is made with the Southern Railway and with the Carolina, Clinchfield, & Ohio. A third rail has been laid from Johnson City to- Elizabethton, Tenn., about 10 miles, and standard gauge cars can be transported to and from that point. At Cranberry there is a large output of iron ore, which moves in “hopper” cars to Watauga Point,'near Johnson City, where a smelting furnace is located.
Hester was a brakeman and one of the crew which operated a switch engine in the yard at Johnson City. On the day of the accident the regular freight train is said to have been “off” — that is, not running — and this switching crew was called upon to move a number of cars with a switch engine to Blevins, Tenn., some 20 miles distant. They started out with 16 empty narrow gauge cars, and one standard gauge car, which was dropped at Elizabethton. Among the 16 cars were several hopper cars at the front end of the train. The switch engine was running backwards, and Hester had been sitting on the pilot beam facing the first car. Shortly before reaching Blevins he in some manner and from some cause fell from the engine under the cars, receiving the injuries from which he died not long afterwards. In order to get him quickly to a doctor, the rear cars were left at Blevins, and the engine with 6 or 7 hopper cars went on a few miles further to Roan Mountain, Tenn., near the North Carolina border. Six of these cars were taken to Cranberry the following morning by an engine and crew of the Uinville Valley road, which came to Roan Mountain for that purpose, and the same 6 cars were loaded with ore at Cranberry and hauled back to Watauga Point within the'next three or four days. In short, the testimony indicates that there was a regular and frequent movement of empty hopper cars to Cranberry and their return loaded to the smelter. It also appears that when the regular train was “off,” as at the time in question, it was usual for defendant’s switch engine to haul empty hoppers and other cars to-
In this brief review we have referred only to such facts as bear upon the question now before us, but it may not be improper to add that in our judgment the questions of defendant’s negligence and Hester’s assumption of risk were also questions for the jury.
Reversed.