276 F. 393 | 5th Cir. | 1921
Defendant in error, herein called plaintiff, sued plaintiff in error, herein called defendant, to recover damages for personal injury to himself. Plaintiff was an employee of defendant and at the time of his injury was engaged in making a coupling of two cars on a side track.
The petition is based upon the Safety Appliance Act, 27 Statutes at Large, 531 (Comp. St. §§ 8605-8612), in that the cars failed to couple automatically by impact, and also upon the Employers’ Liability Act, 35 Statutes at Large, 65 (Comp. St. §§ 8657-8665), in that the engineer, knowing the plaintiff was between the cars, negligently and violently backed his train without signal, and without notice or warning to' him. Three unsuccessful attempts were made to couple the train with the automatic couplers, and thereupon plaintiff went in between the cars to attach the safety chains, and was injured while doing so by the backing of the train. There was conflict in the evidence as to whether the curve upon which the coupling was attempted was. a slight one or a sharp one. It is also disputed whether plaintiff gave the signal for the engineer to take slack, plaintiff denying that he did so, while, on the other hand, a witness for defendant, regularly employed as a brakeman on another train, testified that he gave the signal to take slack at plaintiff’s request. There was also evidence that the backing of the train was violent and went beyond the taking up of slack. According to plaintiff’s testimony, the engineer knew plaintiff went between the cars to attach the safety chains, after the automatic couplers had failed to work.
The court charged the jury upon the two statutes above mentioned, and there was- judgment for plaintiff.
We are of opinion that the failure of the couplers to couple was the proximate cause of the injury, because it was the dominating cause. If the couplers had worked, there would have been no occasion for plaintiff to go between the cars for the purpose of making use of the safety chains. It is true he was injured after the automatic couplers required by the act of Congress had failed to work, but that is when such accidents usually occur.
It may be that the Supreme Court has not definitely held that couplers must work on sharp curves., although it ’was assumed in Railway Co. v. Taylor, 210 U. S. 281, 28 Sup. Ct. 616, 52 L. Ed. 1061, that the act applies even then.
The jury was entitled to find from the evidence that the curve was a slight one, because there was evidence to that effect. In such a
By reason of the fact that a signal was given to the engineer, although not by plaintiff, hut by a brakeman who claimed *to act for him, it is contended that the negligence, if any, was that of the brakeman and not of the engineer. But there was testimony that the brakeman was a member of another train crew, and it is in dispute whether he had anything to do with the switching operation then in progress. Besides, as already pointed out, there was conflict in the evidence upon the point whether the engineer obeyed the signal merely to take slack, or backed his train more violently than was necessary.
On the whole, the issues were fairly submitted to the jury, and the judgment is affirmed.