209 F. 321 | 6th Cir. | 1913
On the night of December 6,. 1910, the intestate, while employed .in defendant’s railroad yards at Paris, Tenn., as a switchman, in making up an interstate train was run over by the engine in use for such switching. When last seen before the accident he had just set the switch, which was on the left-hand, or fireman’s side of the engine and was apparently proceeding to cross the track 5 or 6 feet in front of the engine. He was found about IS or 20 feet further up the track, just outside the left-hand rail, one foot cut off and his body badly crushed. It was plaintiff’s theory, stated in the declaration and relied upon at the trial, that deceased stepped upon the pilot and was thrown therefrom through a lurch caused by the engine passing over a “low joint” in the track. The engineer and another witness testified that decedent told them that in trying to turn on the pilot he slipped and fell off. He died within an hour after the accident. The grounds of defendant’s negligence relied on, as far as submitted to the jury, were the use for switching purposes of a road engine carrying a pilot, and without a front foot-board, instead of a switch engine, which has a front footboard and no pilot, and an out-of-repair and unsafe condition of the track. The defenses were a denial of negligence on defendant’s part and assumption of risk and contributory negligence on the part of deceased. The
Can it then be said that there was no evidence from which the jury was at liberty to infer that the unevenness of the track contributed to the accident? In other words, does the record support only a conclusion that the deceased would have slipped and fallen regardless of the unevenness of the track ? The test of the propriety of submitting the condition of the track as a contributing causé of the accident is whether reasonable men would differ in the conclusion to be drawn in that respect from the evidence. C. & E. R. R. Co. v. Ponn (C. C. A. 6th Cir.) 191 Fed. at page 689, 112 C. C. A. 228, and cases cited. The testimony showed that the engine was running at but from one to two miles an hour when the accident occurred. There was testimony tending to show that the engine had a handhold accessible to one standing on the pilot rim, but not as conveniently effective as from the front footboard of a switch engine; also that the pilot rim was of metal, “hacked” or “punched,” inferably for the purpose of roughening it, so as to make footing more secure. The mere fact that the spaces between the rails were not-filled in is not alleged or shown to have contributed to the accident. The unevenness of the track (re-
The judgment of the district court is affirmed, with costs.
Act April 22, 1908. o. 119. .15 Stat. «3. amended by Act April 5, 1910, c. 143, § 2, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325).