McCarthy v. Pennsylvania R. Co.

SPARKS, Before MAJOR, and MIN- TON, Judges. Circuit MINTON, Judge. plaintiff’s decedent, McCarthy, defendant’s railroad. upon which the decedent train passenger gineer was a train running be- Chicago, Indiana, plaintiff complaint charged tween 16, 1941, the de- September following negligence on the acts of Illinois. On out of cedent, run engineer, took defendant: at Indi- arrived when he and careless- “Par. 6. That said defendant twenty-three Harbor, ana a of distance negligently permitted and ly allowed and miles, right side pony trucks on the said locomotive used in interstate to be bоx. At engine developed hot of journal on commerce with a defective oiled Indiana the decedent engine front axle the said truck. of op- packing The tower in this hot box. said defendant care- “Par. 7. That hot box erator at this station observed the lessly permitted loco- negligently and said telephoned dispatch- and fact to placed operate in service to motive to office of the defendant’s er’s office said train with defects in said locomotive superintendent Chicago. called He also journal said front operator Whiting, at next of station engine axle truck said to become over- of Indiana, notify McCarthy and told him to heated. MicCarthy gave of He the hot box. “Par. 8. That the said care- defendant signal,” which ac- McCarthy “hot box lessly negligently permitted and or- Indiana, knowledged. Whiting, the con- At operated dered said train to be with said McCarthy signal go gave ductor defective locomotive after it became known Colehour, mile the next station about a of employees and officials the said оf distant, get engine, or more another defendant that said on said loco- ignored signal McCarthy this and went but motive was overheated.” Indiana, agent Whiting, also at on. charges All negligence, the above of gave McCarthy signal,” “hot box proven question without acknowledged, bag- he but as soon as the spell of Safety Appli- out a violation loaded, proceeded gage Engle- he on to Act. ance

wood, Illinois. the train When arrived question presented, Only one is Englewood, at hot and that box attracted at- properly whether the court people, tention of a number of two is of instructed calling McCarthy’s jury. attention to them it. McCarthy Here the conductor talked Act, Safety Appliance 45 U.S.C.A. him if and asked he didn’t want to an- 23, provides “It shall that: be unlawful engine shops at the defendant’s permit carrier to use to be in Chicago, McCarthy 59th Street re- used on its line unless locomotive said * * * fused and continued on toward the Union parts ap- and all Chicago. 22nd Station At Street the purtenances thereof condi- * * operator tender, block and switch who operate tion and safe to McCarthy, signaled him about Employers’ Liability Section box, McCarthy hot smiled provides: “Every 45 U.S.C.A. § up. started He had traveled a short dis- engaging common carrier while pony when the tance truck broke down * * * in commerce shall be liable in box, hot

because of the turned person damages suffering injury over, and as result thereof McCarthy was employed by while such carrier he killed. commerce, or, in case of the death employee, personal to his or her plaintiff administrator the es- * * * representative, for such McCarthy brought this tate of action under resulting in whole or in (Boiler Safety Appliance Inspection officers, agents, Employers’ Acts, Act) Liability such carrier, rea- 23 and U.S.C.A. 51-60 to recover for §§ any defect or insufficiency, son of due to of the mother the benefit who cars, in its engines, appli- him. The returned survived a ver- * * ances, machinery, upon defendant judg- dict for the Court, entered pari ment was the District These two Acts are in ma judgment, teria, this If together. must appeal taken. be construed mal, boxes, of Section and an defendant violation plain- use in commerce defective box in Title 45 U.S.C.A. that was on is a violation tiff’s defendant’s railroad a locomotive neg U.S.C.A., and is operate, defective and would Section Title 45 unsafe to per hot can per ligence would authorize That such se. se and apparent from dangerous 51 of the same extremely action Section Although happened long Title. This has the construction what in this case. “ * * * good apparent If condition these statutes. violated, question and the be when it lеft general apparent along way, of care is im- Section sense want came Ry. by Rigsby, Texas 241 violated ‍​‌​‌​​​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌​‌​‌​‌‌​‌​​​‌‌​‌​​‌‌‍material. P. v. 45 of the statute & of Title was 874, 482, no difference L.Ed. makes U.S. 36 S.Ct. 60 the defendant. Kilburn cited. arises. cases there But the two statutes where unfit condition the Co., pari materia, employ- in the St. R. Chicago, and where v. Milwaukee & Paul liability ‘any defect or ers’ refers to Mo. 232 S.W. 1017-1023. 289 insufficiency, negligence, in its due to its Appli Safety This section the cars, appliances,’ etc., engines, clearly imposes upon the carrier the ab Act ance legislative a viola- is intent to trеat the duty to have its and continuous solute safety appliance ‘neg- tion of the act as appur parts and equipped with locomotives ligence’ is negli- sometimes called —what in their which are safe tenances per gence se.” Antonio & Aransas San place. Byron, Minn. v. 176 normal O’Dea 476, 484, Pass Co. v. Wagner, R. U.S. 67, 222 N.W. 519. 626, 630, 26 S.Ct. 60 L.Ed. 1110. of the defend negligence the Since Under the the statute defendant’s Appl Safety was a violation the ant duty continuing became to absolute not plaintiff’s decedent could iance plaintiff’s furnish to a loсomo decedent risk,1 no the deemed to have assumed op tive in condition to that was many how times the was matter erate commerce on its without to observed the decedent peril employees. duty to its to ex to use Con and he thereafter continued it. ordinary provide ercise care safe lo to v. Atlantic Coast gress has said so. Tiller comotive, which rule at common was the Co., S.Ct. 87 L.Ed. U.S. law, was made absolute the terms of the 967; Baltimore Ohio 610, 143 A.L.R. Safety Appliance to the Act. No notice supra. The Groeger, statute also R. Co. defendant, otherwise, constructive or as provides plaintiff’s decedent could the defective, the unsafe condition of to the contributory negligence guilty not be locomotive, necessary was to be shown. charged negligence where the vio was a Groeger, Ohio& R. Co. v. Baltimore Safety Appliance ‍​‌​‌​​​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌​‌​‌​‌‌​‌​​​‌‌​‌​​‌‌‍Act.2 lation U.S. 45 S.Ct. 69 L.Ed. 419. have negligence where the So we a case defendant, However, Harbor a violation Indiana statute, up accident, continued the scene the defend of tо the scene engaged accident and was a con- McCarthy in of the ant tributing accident, commerce on railroad as cause to interstate an chargeable upon plaintiff’s an that was not not assumption op contributory was unsafe to condition and undisputed of risk because defendant’s viola- service. evi erate boxes are the statute. Thus never showed that hot abnor- tion of dence ute enacted ployment tion contributed employee.” “ “ ^[*] * * ^[*] * * assumed the risks of 45 U.S.C.A. 54. common carrier of Provided, That no such em- employee case where the viola safety or death shall be held stat em violation statute of such ployees be tory ployee who held to contributed enacted employee.” have may such common injured 45 U.S.C.A. guilty case where the injury safety carrier of or killed shall of contribu- of em- § Indiana, puted defendant’s that the Indiana a time defend- furnishing an unsafe accident scene and of it- time was to decedent was at no negligent, ant not contributory- negligence per instruc- se. From the chargeablе with the decedent self— tion court, risk, given assumption because were told negligence or there- effect that defendant’s' statute had relieved pended upon showing concur- that defendant did of, times were at all acts furnishing care in the loco- violation use due defendant’s ring Under motive accident. while statute produce statute “duty circumstances, says continuing” the made statute absolute and acts, the de- to furnish a safe locomotive. Baltimore liable for its defendant is Groeger, supra. his. & Ohio R. Co. v. liable for cedent in- law, court In this state of the answer tendered defendant’s follows: structed as proximate the issue that cause the sole brought what action “This accident was the fact that de Lia- Employers’ known as the Federal cedent continued use the part, as provides, Act in bility This Act. of after he knew its condition parts are the that shall read follows: report duty it his failed to as un rail pertinent: Every common carrier der the rules. acts constituted no These any in commerce between engaging while defense. The acts all were сon decedent’s States, be in dam- shall liable of several the curring of acts the act the defendant injuries any person suffering while ages to statute, of the in violation and were either inter- carrier in employed such he is contributory negligence assump acts of or commerce, in case the death or of state the danger, tion of risk known of employe of the the benefit of such which, out, —for pointed both as we have of none, child, husband, if then or wife had been relieved statute. “ decedent, parents for * of said * * whеre, case, But as in this arising of injury reason plaintiff’s contributory negligence and de in insufficiency, negligence due provision violation of fendant’s of a cars, engines, appli- operation its of safety appliance prox concurring act are ances, equipment. That machinery other causes, plain imate it is employ that the the law under action is liability requires ers’ the former to be brought. Spokane disregarded.” Empire Inland & short, provides “In railroad is Campbell, 497, 510, it that R. Co. v. 241 U.S. injury death of for the ‍​‌​‌​​​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌​‌​‌​‌‌​‌​​​‌‌​‌​​‌‌‍of one liable S. Ct. L.Ed. 1125. Seе also injury employees, or death Wene, its has Cir., if Louisville & Nashville Co. v. negligence the result of the F. company, employees.” or its The court further instructed the- ordinary defined common court then hand, jury: (if you find) “On negligence and that the of stated law law company, that railroad all it unlawful for the the United made States things required law, of times the it and’ furnish decedent an unfit defendant law that it did not requiring violate not instruct the But the court did engine. in engines condition, use of even if jury such unlawful act of the defend- that you find the Defendant was and: plaintiff excepted negligence. The ant was comply did not requiring with the law quoted instruction the “reason an condition, in engines good use of but that imposed duty is on absolute the railroad comply with failure to the law was- equipment, in the to furnish safe even of injury cause not the and death any negligence part, absence on its but that such equipment, furnishing solely by acts, caused were own death would be liable.” independently on the Defendant, it part your court did not on the would instruct be But, complaint, tendered and undis to find the Defendant. duty issue as- statеd, Employers’ Act and Liability on 45 U.S. I have acts Plaintiff, you find such the com C.A. and 51. As stated in §§ plaint majority opinion, negligence, merely contributed acts death, separate alleged negligence three were the sole cause of acts of upon: you (1) negligent Plaintiff.” relied should find for the That defendant ly placed permitted its locomotive to improper, first be- This instruction is commerce, service with defects interstate jury cause it told in effect that the de- it, journal its stat- fendant’s for violation of the overheated; (2) front axlе to become depended upon be- ute the said violation negligently permitted it its locomotive death, ing the cause of the decedent’s used in interstate a defec commerce with provides whereas the statute that the axle; (3) journal on tive front fendant shall be liable if violation negligently it locomotive and ordered its part” caused “in whole or commerce, operated train to interstate 51; Spo- decedent. U.S.C.A. em after it became to defendant’s known Campbell, Empire kane Inland Co. ployees and officials supra. im- Secondly, instruction is journal, A overheated. that the because told applied machinery, portion of a plaintiff could recover if his decedent rotating bearing. axle which turns guilty, that sole- of acts of caused, prop- ly As an abstract his death. complained It is clear the first act correct, law, but there osition of is that defendant independent acts no evidence with an for his use interstate the decedent that were commerce which was defective at the time cause the accident and his sole he which received it and defect prop- The had instructed on a death. court Hence, journal to become overheated. of law about which there no osition this charge is based not on evidence. axle, the overheated but on defect in mechanism, plaintiff alleges This was bound to and confuse true, caused the overheating. This must be mislead the into that believing argument for before this court he urged concurring acts of the decedent in con emphasis journal that if the was not tinuing use dеfective defective when it was furnished defective, he knew it was and not after it would not have become overheated. it, reporting might be considered as acts which the decedent accept I cannot factual conclusion this might charged with sole for the true, is knowledge for it common that giving accident. The of such instruction bearing metal will become overheated if oiled, such circumstances was error. In kept it sufficiently is not regardless 159, Baring, v. 20 surance Co. Wall. 87 or perfect of whether not it was in condi- 162, 225; 22 159, L.Ed. U.S. United States properly tion and oiled when the use itof 252, 252, Breitling, v. 20 How. 61 U.S. began. This record discloses that a “hot 254, 900; Vanderbeck, Adams L.Ed. v. 15 may box” caused lack of sufficient oil 148 Ind. 45 N.E. 47 N.E. presence bearing or the therein of Am.St.Rep. 497; Fletcher Co. Bros. foreign substance, some hard such as sand Ind.App. 9; Hyde, N.E. Cor gravel. or There is no evidence whatever 657; pus Jurispru Juris, 53 American presence journal in this of any hard 579-580, dence, and Section numerous cas substance, foreign and there is substantial es cited. uncontradicted that evidence this bearing reversed, judgment The and the Dis- good was oiled and condition when it grant trict directed Court new trial. Valparaiso in charge left of decedent on day the accident. Judge SPARKS, (dissenting). True, bearings may metal become ab- complaint theory of this neg- they normal and defective if are continu- Inspection of Boiler ously subjected in violation ligence to excessive heat Indeed, opin- accept majority do destroys ele- not it. some eventually weakens apparent de- ion that function. states mechanism or its ment time, proрerly fect at the uncontradicted that cannot be event it Prior to that abnormal, there was positively evidence discloses that bearing box said that However, the no such at time. comport with that defective, but it would the above opinion that all bearing majority states say facts to that the proved charges “with- are subjected here issue was being question by This is out evidence.” Hot boxes use. abnormal and defective saying that when tantamount not unusual engines and trains are permitted by defendant to be gine always they do denote a placed in service interstate commerce mechanism, they do denote a Valparaiso may there was dangerous condition or use it be- journal dam- fect which caused journal great result a defective was at properly. come overheated. age if attended De- to a jury. was tried This case for interstate com- and received him instruc- peremptory motion fendant’s complaint alleges merce service. over- the close the evidence was tion at then the defeсt in the existed which general ruled, ver- jury returned caused become overheated. This carried for the dict defendant. agreed are that this I understand that we neg- ‘not defendant was finding it fact, is an erroneous conclusion and that negligence was ligent and that decedent’s journal or “box” was without defect the accident. these By sole cause of notwithstanding left supported by findings bound, sub- are we complaint, contrary allegation in the say can as a stantial unless we opinion majority in the statement negligent. of law defendant was matter complaint allegations that all neg- gross denies decedent’s No one here proved question “without the evidence.” opinion although majority ligence, parry seeks to because states defendant was argument by contending force Title U.S.C.A. it violated §§ defendant furnished decedent a pari are holds materia. which Harbor, engine at after he had Indiana statutes agree that the two should be I twenty-three finished miles trip of his to pari materia, but I am convinced construed Chicago. Here was that it defendant did nоt violate that and conductor were first informed separately statutes when considered either my hot box. This confirms contention that pari or in materia. engine there no defect in the was agree analysis with the of these statutes Valparaiso, it left no violation hence opinion. forth in the It as set up fact, statutes to that time. This “If in violation of Sec- says, the defendant course, obligations did not end defendant’s plaintiff’s tion 23 furnished the decedent employees, including engineer. to its this that with a locomotive was defective and During trip Chicago to was it liable operate, would be unsafe to damages under section 51 for the en- per se and would authorize action un- gineer’s injury or resulting death in whole of the same Title.” How- der Section 51 part from any or jury, upon ever, the verdict based officers, agents, or its by reason evidence, discloses uncontradictcd insufficiency, defect or due to its when furnished decedent defend- engine negligence, engine. in its Valparaiso, was not ant at only Plaintiff’s answer to find- manner. What was act of defend- ant, basеd on the train jury after arrived at ing Indiana Har- plaintiff’s bor, unsupported on reason of but rather defect or in- then sufficiency engine it had not in the due that if defec- thesis to defendant’s tive, gotten would not have box resulted whole part hot. or in accept did not thesis and decedent’s death? Clearly it it was not understanding my my hot, box the mere fact associates became but to act alone which act alleged the fatal rather, was defendant’s it himself, happen contend- to use it is not to and ordering decedent permitting or еd, be, part Indiana nor can it from acts box engine hot scope, scope, apparent were in accident. place to Harbor authority. latent de- not a had been fur- This was engine which was the same True, highly patent engine, fect it it Valparaiso.

nished decedent at kept un- extremely hazardous, and continu- unless decedent for furnished to han- der control. method of service, part ordinary on the ous dling speed box” by delivery at a “hot is to slacken fully fendant executed way, and, oil it on if it by my asso- to does admitted and as improve, stop engine. He never defend- negligence of the ciates, without jour- ant, slackened his and he oiled speed, either of' and without violation of nal once. part. the statutes on Chicago. re- miles from To the statutes create under passenger This train train and to, plain- was a local ferred me that clear to seems stops. hot required prove were seventeen This tiff was existence was first noticed decedent the con- delivered to when it was ductor at is 23 miles engineer Valparаiso, or if such de- Indiana at Valparaiso. There insufficiency fect from decedent oiled in the arose whpre service, plaintiff the hot box He thereafter while in such was. K., signaled required prove that conductor that “he was O. decedent’s go,” proceeded and to in whole defend- the train resulted from Whiting, a negligence. precise ant’s distance three to three and follows This language of the and I found one-half miles. There the condition was statutes better, no signalled federal held other- the conductor decision has Colouer, go wise. on to about mile distant, engine. another In re- course, Of section of the Stat- sponse thereto gave “high ute, prohibited using defendant sign” go, which pro- means “we will permitting to be used on its line ceed.” It further meant that his parts appur- unless all its proper was in go. condition to condition and tenances were operate, regardless signals All go” of its condition when of the conductor “to are Valparaiso. required by leaving Decedent was em- the rules of defendant to be ployed acknowledged by sign defendant that these con- answered to see complied trip engineer. things ditions were with on If Chicago. proceed, in engineer He was safe condition to to a a he answers years experience they “high of the defend- what as many sign” term complete charge proceeds;' ant. He had of the man- “O. K.” and engine the agement engine, except proceed, not in and control of this a safe condition to the con- signaled sign stop by as he was to start and ductor’s not answered and the train not, engineer not, does pr the more should conductor. move. In' words, capabil- engine’s “go” condition»and the conductor’s sign about the is also inquiry any engineer an ities than defendant’s as to of the con- train, engine. and he dition of his every was final arbiter At stop be- respects. was tween employed point He in those for the ac- of cident, duty, approximate an purpose, and it was his em- as an distance forty- of miles, present ployee representative sole and the two there were about a engineer rеspects, stops, defendant in dozen of' those to ex- answered the proportionate “go” sign 'by danger ercise care conductor’s an to to sign. “O. K.” Moreover, disobeyed he avoided. When he failed to do this he the conductor’s stop say signal heard get should not be to' to at Colouer and new used, permitted engine. Along fendant its the line from Indiana ‍​‌​‌​​​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌​‌​‌​‌‌​‌​​​‌‌​‌​​‌‌‍Har- engine point to be used him in bor almost to the violation of' the accident to; referred signaled engine the statutes' his his acts he Was had a' hot defendant, trip, killing engineеr. employees of There was various judgment plaintiff, verdict duty. acknowledged these He their Appeals his course. the Circuit Court affirmed it. warnings, smiled and continued reversed, however, in It was at 63rd Street Englewood, Supreme which is At Court on Chicago, to him while account of defective instruc- the conductor talked tion. cab, he and asked him if wanted engine conductor an at 59th Street. This It seems me of these cas- that neither will make it testified that he said: “We supports plaintiff’s contention es here. get me to on the down town. told He majority opinion agree train, going.” From the evidence we were company violates the hot is clear that the box became worse Appliance plaintiff’s Safety after leaving Indiana and dece- assumed the cannot be deemed it, Englewood dent knew and at station However, principle does not risk. people number standing were near here, where, as the en- come into effect engine observing the hot box. defect, gineer every knowledge has on the relies case trip begun, has which arises аfter his Co., Chicago of Kilburn M. P. & St. dangers defiantly ignores obvious he Mo. In S.W. 1017. that case conductor’s order and obey fails pressure cylinder the lower on the left side case, request engine. In such a new had en blown out while route risk, certainly he assumes the here, on November 1915. As own, defendant’s gineer boss crew event, Company any in that has and his controlling. directions were He Safety Appliance way violated the Act. proceed. directed the train to Steam happened just Twenty- below accident escaping continually Street, Second least three miles caused the clothing to become fireman’s place the last the conductor asked him to very wet. From pneu- contracted he engine. a new obtain died, representatives monia and and his circumstances I think it Under these were duty recover. It was his death here com- cannot said engineer to follow the order plained resulted whole engineer he did so. The was not dam- negligence of of defendant’s from the aged way. represented He the Com- employees except agents or officers or and, pany, far so as the fireman was gross and defiant concerned, engineer was acting with- himself, nor did it result reason of apparent scope authority. of his insufficiency engine, in its defect or course, engineer Of as between the negligence. Nei- due to fireman, the defendant was liable for defendant’s officers, it, nor had the ther engineer the acts of the appar- within the knowledge except slightest scope ent of his authority, which caused engineer and con- knowledge of thе as the fireman’s death. This would be true imputed Knowledge may to it. ductor the case at bar if any per- imputed another, sometimes son other than were involved pari ma- which is construed in section in this case. It would seem unbelievable section the sole teria with unreasonably could be statute so imputed engineer should not permit construed as to engineer, or his defendant, where no act of representative, to recover under such cir- defendant, forth in section as set cumstances where his own defiant conduct shоwn. is the sole injury. cause of the by plaintiff opinion is not claimed further relies on Baltimore officers, agents employees, defendant’s Groeger, & Ohio R. 266 U.S. perhaps engineer, S.Ct. than the L.Ed. 419. In that case there conductor, guilty

was a defective boiler were en- gineer at contributed to the second beginning trip. caused or It had defect, exploded latent alleged acts of and it third during the ar- However, numbered them. in the ma-

gued, intimated and is strongly ‍​‌​‌​​​​‌‌‌​‌​‌​‌‌‌​‌‌​​‌​​‌​‌​‌​‌‌​‌​​​‌‌​‌​​‌‌‍neg- opinion, conductor

jority

ligent compelling though the engine, even

stop a new by sig- had informed conductor

latter engine was in stop

nal at each knowl- proceed. It is common

condition to ordinarily position

edge that a conductor’s he and the engine/ is not at the signals, where

gineer communicate ques- neither is competency of

as here the

tioned, they and the defendant have signals in so far as

right on those rely there is

they concerned. I think contention.

merit that, further states presented, and (here)

“Only question one properly instruct- the court

that is whether uncontra- jury.” In view

ed the instructions, con- dicted whole, properly stated the law.

strued as case should be affirmed.

I think the MATTERN CO. v. GANTNER

PORTER 11263.

No. Appeals, Ninth Circuit. Court of

June

Case Details

Case Name: McCarthy v. Pennsylvania R. Co.

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Aug 7, 1946

Citation: 156 F.2d 877

Docket Number: 8830

Court Abbreviation: 7th Cir.