274 F. 497 | 1st Cir. | 1921
This is a writ of error from a judgment in favor of the plaintiff in an action brought by John H. Connor in the District Court for the District of Maine under the federal Employers’ Liability Act (Comp. St. §§ 8657-8665) and the Safety Appliance Act (Comp. St. §§ 8605-8623), for injuries sustained by him June 23, 1918, while in the employ of the Portland Terminal Company, a railroad engaged in interstate traffic and under the control and management of John Barton Payne as Agent and Director General.
The declaration contained one count, and alleged that the defendant at the time of the injury was a common carrier engaged in interstate
In its assignment of errors the defendant complains that the court erred (1) in not directing a verdict in its favor, on the ground (a) that the plaintiff assumed the risk, and (b) that there was no evidence from which it could be found that the defendant was in default under the Safety Appliance Act, or that it was guilty of negligence; (2) that the court erred in charging the jury on the question of assumption of risk, in that it did not further tell theni that if the plaintiff knew, or in the exercise of reasonable care should have known, that the defendant was kicking the cars negligently — too fast, etc.’ — he assumed the risk; (3) that it erred in refusing to give the defendant’s second, third, fourth, and fifth requested instructions; (4) in admitting the testimony of Van-ier and Cannon as to whether either of them stopped the cars where they intended to; (5) in admitting the testimony of Rainy (a) as to wliat he had observed in switching operations on the Grand Trunk; (b) as to what is the ordinary rate of speed upon that road; (c) in the reception of his testimony as to how far three loaded cars, if properly braked, would be moved if three or four cars were kicked down upon them at the rate of 4 to 6 miles an hour; and (d) because said witness was not qualified as an expert; and (6) that the court erred in admitting the testimony of Connor as to what pay a brakeman in the defendant’s employ received at the time of the trial.
Tiie railroad yard in which the plaintiff was employed consisted of a number of tracks, including a main line and various cross-overs. It was a place where freight trains were reclassified and made up. The tracks in this locality run substantially east and west. There were various bitildings about the yard, among which were the yardmaster’s office and a lobby, where the employees changed their clothing. North of the yard and adjoining it was a highway known as Commercial street. Emery street ends at the edge of a cliff overlooking Commercial street and the yard, and at the foot of that street a flight of steps descends to Commercial street at a point near the yardmaster’s office. The employees of the defendant living in that part of the city of Portland were accustomed to use these steps in going to and from their work in the yard, and to the yardmaster’s office and the lobby, and to cross the tracks there in going to and from the repair shops and roundhouse. In the course of the work of shifting cars and making up trains on the
The evidence tended to show that at the time the three cars were kicked from the west down the main turnout a brakeman by the name of Vanier was aboard them; that he had been instructed by his conductor to ride them down on that line and to stop them at a point so that there would be room to receive four other cars, which he was to kick in upon' that line, and leave "a clearance between the four cars and cars that might pass on adjacent lines; that Vanier, in the performance of his duty, undertook to brake down the cars to meet this requirement, but the brake on first car was worthless, that on the next would not hold, and that‘after reaching the third car and braking it he succeeded in stopping the three cars some three car lengths beyond where he had undertaken to stop them; that the rate of speed at which the four cars were kicked upon the three still cars was from 10 to 15. miles an hour; that, although the defendant had. no rules limiting the speed at which cars should be kicked, but left it to the discretion ,of the conductor, the usual and reasonable speed was from 4 to 6 miles an hour; that cars like the three cars, if adequately braked, when struck by cars moving at the rate of 4 to 6 miles an hour, if moved at all, would not be moved more than 2 or 3 feet, but that in this case they were driven back with a jump and continued on for three or more car lengths; and that the main turnout in this locality had a slight grade to the east. A rule of the company provided that—
“Oars left on side tracks must be properly secured by brakes being set, and, when necessary, trigged. Standing on grade, all ears must be coupled. They must not obstruct tbe use of other tracks, or in any way endanger the safety of passing trains,” etc.
The ■ evidence further tended to show that there was danger that cars left standing on the main turnout unbraked would, on account of the grade, run easterly, and, if the turnout switch was open, go onto the main line. There was- evidence that neither the plaintiff nor his conductor heard or saw the oncoming four cars, and that the smoke of their engine was likely to obscure the sight of the oncoming cars, had
On the question of assumption of risk the court charged the jury that—
“Tinder tlie federal Employers’ Mobility Act, the plaintiff assumes the ordinary risks * * * of his employment, and such extraordinary risks as lit' knew or in the exercise of due care should know. He does not assume tlxo risk of any negligence on the part of the defendant, its officers, agents, employes, or servants, of which he does not know or which in the exercise of reasonable care he could not have known.”
And it explained specifically and in detail the meaning of the rule as applied to the evidence in the case. To this no exception was taken. At the close of the charge the defendant submitted five requests for instructions. The first was:
“That a servant; assumes the extraordinary risks incident to his employment or the risks caused by the master’s negligence, which are obvious or fully known and appreciated by him.”
The second request raised one of the questions which we have previously considered on the motion to direct a verdict and needs no further consideration.
“assumed the ordinary risks incident to his employment and the risks caused by the master’s negligence which are obvious and fully known and appreciated by him.”
This instruction had already been given in the charge.
The fifth request was:
“That, even if the defendant were guilty of negligence, yet if the injury was one the danger of which was or should have been obvious or fully known and appreciated by the plaintiff, then the plaintiff is barred from recovery, because he assumed' the risk of all damage growing out of such danger.”
The defendant takes nothing by this exception, as this request had in substance previously been given.
Cannon, the conductor, was called by the defendant. He testified on direct examination that he had control of the switching movements of his crew, and that when he came back onto the main turnout he kicked the four cars upon the three that had been sent down that line; that he pulled the pin for the purpose of kicking the four cars; and that when he pulled the pin the easterly end of the four cars from the three standing cars was about seven car lengths. And on cross-examination he testified that he told Vanier to ride, down the three cars, so that the line would hold three or more cars that he was going to kick down upon them; that he “only intended to have seven cars at that time on the main turnout.” He was then asked the following question: “Now, sir, as a matter of fact did not those three cars go further than you intended them to go?” and, subject to defendant’s objection and exception answered: “I had no particular place in mind where the cars should stop.” In answer lo further questions he stated that it was for him to determine where cars should be stopped.
We ihiuk it was competent for Vanier to testify where he was directed to stop the cars, that he undertook to stop them as directed, arid that they went down the line three or more car lengths beyond where he undertook and reasonably expected to stop them, and that this is all the testimony comes to. The question put to Cannon was of the same character, and in any view of the matter, when considered in connection with his answer, was not harmful. This disposes of the fourth assignment of error.
The judgment of the District Court is affirmed, with costs in this court to the defendant in error.
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