197 F. 528 | 6th Cir. | 1912
The administrator brought suit in
the court below “under the general laws of the state of Ohio and of the United States” for the benefit of the widow and child) of the deceased, Plenry Cary, to recover damages on account of fatal injuries alleged to have been received by Cary on July 16, 1906, without fault on his part, but through negligence of the railroad company. Judgment upon a directed verdict was rendered for the railroad, and the case is prosecuted here on error. While in the employ of the company in its railroad yards at Delphos, Ohio, Cary undertook to assist one of the company’s car inspectors, Foster, pursuant to direction of their foreman, to replace a door upon a car. The door was discovered by the inspector at a point about 400 feet away from the car. Foster and Cary carried the door to a point near the side of the car on which the door was to be replaced, when the accident occurred. The car to which the door belonged was one of 10 cars standing on a switch running north and south. This switch was known as No. 6, and was one of a number of substantially parallel switches connecting with and running north from the lead track, the latter running east and west. Foster and Cary carried the door between switches Nos. 5 and 6 northwardly to the end of the line of cars standing on No. 6, and across that track to the space between Nos. 6 and 7. The door weighed about 200 pounds, and, when the point last mentioned was reached, Cary said to Foster, “Let’s set it down,” and this was done. While the men were holding the door, with one of its edges on the ground, a switch engine pushing 18 cars was run from the lead track into switch 6 and against the south end_ of the cut of 10 standing cars before mentioned. This set the standing cars in motion, and the door was struck by the north car, which resulted in derailing its front trucks and driving the car across the space between 6 and 7 until it struck a car on 7. Cary was thrown under the derailed car and injured to such an extent that death ensued some hours later.
It is important to study the situation as it existed at the time the derailed car was set in motion. While the men were at opposite ends of the door and holding it with one edge resting on the ground, Cary was standing with his back to the south and his left hand on the door, and Foster was facing south with his right hand on the door. Foster testified that the door was then “standing straight up and down,” and that the distance between Cary’s end of the door and the car
“We was (sic) standing there, holding the side of the door, and all at once the bunch of ears that was standing there was struck and in some way he (Cary) got caught, and before I could hardly realize w'hat happened X saw him go under the car behind the first pair of trucks. * * * It was so unexpected and. so quick that I couldn’t catch — the first I realized after the striking of the cars I saw him going under the cars. * * *
“Q. Were yoii able to tell at all that the engine was approaching and about to strike those cars? A. Not where we were standing holding the side of the door.” \
The car to which the door in question belonged was next south of the derailed car. Thus, at the time of the accident, the men had reached a point within about one car’s length of the car on which they were to replace the door. It is plain that they had no thought of the approach of the switch engine and cars it was pushing, or of the resulting movement of the car that was derailed. This movement was not.only unexpected, but sudden. If Foster is right in his testimony that the door was being held in an upright position, it is difficult to see how it came into contact with the north car and caused its derailment, unless the suddenness of the car movement startled one or both of the men, and so caused one or both to change the position of the door. True, they might have placed and held the door within a line corresponding with the outside of the overhang of the derailed car, but in that event it is hard to understand why Cary was not struck by the end of the car instead of being thrown under it behind the front trucks. In either event, the sudden movement of the cars was calculated to surprise the men and throw them off their guard. The evidence tends to show that the standing cars were susceptible of riearly simultaneous movement, because they were‘equipped with automatic couplers and coupled together. One of defendant’s switchmen testified that ‘the movement caused by a stroke at one end of such a string of cars is communicated to the other end in four or five seconds, also saying, “It is awful close.”
It was practically admitted by defendant that nothing was done by the company in this instance to prevent a movement of the cars. This admission was made in connection with an offer of testimony as to the practice of railroads to protect car repairers. Witnesses of some experience in such matters were called — one particularly of considerable experience as yardmaster first for the defendant company, and for the Lake Shpre at-the time he was on the witness stand — to show this practice generally, including that of defendant. The effort seems, in substance, to have been to prove that the practice or custom was,
“That it was the practice in the yard for Mr. Murray, the foreman of the car repairers, to give notice to the switching crew whenever he had ordered repairs or know that repairs were being made on a car standing upon a switching track, and that this notice would be given at the time or immediately after he gave his orders or knew that the work was being done.”
Regardless of the proposed amendment, however, can it be safely affirmed as matter of law that the evidence does not tend to prove a case for submission to a jury? As we understand the ultimate view of the trial court, it was not that a case for the jury would not have been presented if Cary had received his injuries through this movement of the cars, while the men were engaged in replacing the door (possibly, though it is by no means certain, the court meant that a prima facie case would have been presented even if it had appeared that the men were carrying the door at the time the movement of the cars occurred); but that since they failed to reach the place of work by something more than a car length (and set the door on the ground, and, in the court’s view, in a position of danger), the administrator’s case was open to the defenses of assumption of risk and contributory negligence.
It was insisted in argument, and is in the brief, that there is no proof of negligence on the part of the company; that there is proof that Cary was guilty of contributory negligence; and, further, that he assumed the risk of the danger causing his death. Did the company owe the men any duty of care, while they were engaged in removing the door from the place where it was found to the point of replacement? Counsel’s theory is that the men were entitled to no' more concern on the part of the company — certainly while standing and holding the door — than yardmen generally are, who are moving about or standing in the yards, and not burdened by a load. Still it was admitted in argument, and we think rightly, that, if the injury
This duty is accentuated by other features of the case. After show
“ * * * He cannot properly undertake to weigh the evidence. His duty is to take that view of the evidence most favorable to the party against whom it is moved to direct a verdict, and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for the party having the onus.”
“Authority vested in the federal courts to amend * * * pleadings * * * in eases brought before them is ample; probably not less so than in. any other system of jurisprudence.”
Inasmuch as there, is now to be a new trial, the allowance of an amendment reasonably in advance of the trial would not be open to the objections which might have made it well within the discretion of the trial judge to disallow the same amendment when asked during the trial and after the case had been developed.
The judgment must be reversed, and a new trial awarded, with, costs.