207 F. 281 | 6th Cir. | 1913
This action was brought in' the court below under the Employer’s Fiability Act of Congress. Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. Supp. 1911, p. 1322). The plaintiff below is the widow and administratrix of D. C. Wright, who died on May 9, 1912,-from injuries received while in the employ of the railroad company as an engineer and operating one of its interstate freight trains. The suit was brought for the benefit of the widow and three surviving children. The deceased received "his injuries while entering the railroad yards at Gwin, Miss., when his engine collided with a coal car protruding so far over a side track on which it was standing as not to allow clearance for the engine, then passing along a lead track. The declaration as amended con
"Oars on side tracks, whether in yards or at stations, must stand clear of all other tracks.”
One of the evident purposes of this rule was to prevent just such collisions as the one in question. The rule was admittedly violated, and, since this resulted in the death of plaintiff’s decedent, the inference of defendant’s negligence clearly required submission of the question to the jury; and the question was foreclosed by the verdict and the action of the court líelow iu denying a new trial.
The only other ground of the motion was that the deceased engineer assumed the risk of injury from the obstruction of the coal car. Defendants’ counsel pressed this claim throughout the trial of the case; and it has been given paramount attention in this court, both upon brief and in oral argument. The learned trial jqdge held that assumption of risk was entirely abrogated as to persons operating under the Employer’s Liability Act. The contention is that this is so only as respects safety appliances, and that the protruding coal car was not a safety appliance. It is urged for the plaintiff that upon the evidence the question of assumed risk does not arise. If this is sound, it will not be necessary to pass upon any of the rulings of the trial court concerning the limitations placed upon the doctrine by the Employer’s Liability Act; for in that event the rulings occasioned no prejudice.
It is important to inquire more closely into the conditions attending the accident. The train in question left the main track some 1,600 feet north of the point of collision and was moved southwardly along the main lead track of the yards until it reached a point something like 200 feet north of the coal car, when, it is claimed, the engineer had Ihe coal car in hill view and could determine whether his engine would or would not clear it. The evidence tends to show that the engineer had his train under control. Indeed, the steam was shut off and the train slowed Tip at or near the point last mentioned. The coal car was standing on the scale track which intersected the main lead track on its south side; that is, on the side opposite to that occupied by the engineer. The car lacked but little (the fireman testified four to ten inches) of clearing the space required for the engine to pass. As the engine approached the coal car, it is reasonably plain from the evidence that the engineer’s view of the car gradually diminished until it was cut off by the 'engine, but that the fireman's view was not obstructed. It was one of the fireman’s duties, under the rules, to “keep a careful watch upon the track and instantly
“how everything was around there, if it was in the clear, and I looked out to see if it was, and I said ‘All right,’ and he opened the engine up and went a short ways, and shut off again, and he asked me if some cars was clear over there, * * * and I couldn’t tell whether they were clear or not, and we got right on them before I thought they wouldn’t clear—lacked only four to eight or ten inches of clearing—”
The witness seeming to hesitate, the court directed him to proceed, when he said, evidently in answer to the second inquiry of the engineer:
“When he asked me if they would clear, I couldn’t tell whether they would or not. I thought all the time they would, and was still looking at them' all the time. I hollered then that they wouldn’t clear, and I said, ‘Get off,’ and I jumped off of the engine, and the next I saw of him he was caught between the tank and engine—and the cab. The corner of the car slashed the cab on my side. * * * ”
The head brakeman testified that he was standing in the gangway of the engine, but the fireman testified that this brakeman was not on the engine at all. However, the brakeman stated that he told the engineer that “it didn’t look like them cars was in the clear.” The engineer then—
“asked the fireman was they clear, and the fireman was putting in the fire at the time, and when he got through he looks ahead, and he told him they wouldn’t clear, and he didn’t understand the fireman, and he asked me what he said, and I said he said they wouldn’t clear, and the fireman had done jumped off, and he leaves his side to go to the fireman’s side to see if they would clear, and I jumped off after he left his'side.”
Now, however this testimony may be viewed (and these were the only witnesses who appear to have seen the accident), one important feature 'of it stands out clearly. It is that the engineer and fireman were alert, and that the clearance seemed to these experienced men sufficient (and this is not contradicted by the brakeman) until at or about the time the fireman jumped. Further, the brakeman claims to have jumped almost immediately after the fireman, and no material lapse of time seems to have intervened between their leaving the engine and the engineer receiving his injuries; yet the fireman had previously told the engineer that the clearance was “all right.” It is to be remembered, moreover, that the protrusion of the coal car into the space required for the passage of the engine was in a comparative sense not only slight in fact, but, when the fireman was exercising and communicating to the engineer his judgment that the engine would clear, both presumably felt assured that the' rule requiring cars on side tracks in the yards to “stand clear of all other tracks” had be'en complied with; for the requirement necessarily means that such cars shall “stand clear” with respect to the passage of engines and other cars along the adjacent track. It is strenuously urged, however, that this engineer saw the danger and assumed the risk of passing. As if seems to us,' this overlooks the obvious force and effect of the evidence. The engineer seems to have been solicitous as
It is further insisted that the evidence in substance shows that the tracks in the railroad yards in question were generally and necessarily more or less filled with cars, and that this was a condition with which the deceased was familiar, and was accompanied by dangers which entered into the risks of his employment. This may well be conceded, but it does not affect the present case. The three coal cars in question, the foremost of which protruded as stated, were not on the main lead track along which the deceased was operating his engine and train. We have seen that one of the rules of the company forbade the placing of a car as this coal car was situated; and the evidence does not tend to show that the company was in the habit of violating this rule, much less that the deceased was hound to anticipate such violation. This
The next contention is that the trial court erred in refusing to charge that the deceased was guilty of contributory negligence. The claim for the most part is that such negligence could operate only in mitigation of damages, not in bar of the action. The reason urged in support of the claim is that the engineer in the last moments left his side of the ■engine to go to the opposite side, where he met his injury. It will be remembered that he did this just after the fireman had left the engine, and just as the brakeman claims that he left it. Whether the engineer went to the other side for the purpose of making an examination himself of the possibility of collision, or from fear that the engine might, in case of collision, be turned over upon the side on which he regularly sat, and so injure him if hfe should jump on that side, is not clear. ■It is enough to say that the question of his contributory negligence was fully submitted to the jury under proper instructions. The natural inference would be that, if the jury believed he did not exercise a reasonable degree-of care, it reduced the damages accordingly. It is true that on the motion for a new trial, upon which the court was required. to weigh the evidence (Big Brushy Coal & Coke Co. v. Williams, 176 Fed. 529, 532, 99 C. C. A. 102 [C. C. A. 6th Cir.]), it was found that the engineer was guilty of contributory negligence, and hence the ver■dict was reduced in the form of a remittitur, which was accepted, in the ■siim of $9,000, as before stated. It is to be observed, further, that after the close of the general charge one of defendant’s special requests was given, which was to the effect that if the intestate failed to exercise ordinary care and caution, and so directly and proximately contributed to the injury, and that the defendant’s negligence, if any, only remotely contributed thereto, then the verdict should be for the defendant. We see no error in any of these respects of which the railroad company can rightfully complain.
“Counsel were bound to present their point at the trial, so that the court might consider it, and cannot, under a broad exception not aimed at it, upon subsequent search for error and finding it, bring it forward as a ground for reversing the judgment. It is a well-settled rule that an exception, in order to found a right to review, must be sufficiently distinct to direct the attention of the court to the particular error which is the subject of complaint.”
See, also, Block v. Darling, 140 U. S. 234, 238, 11 Sup. Ct. 832, 35 L. Ed. 476; Pennsylvania Co. v. Whitney, 169 Fed. 572, 577, 95 C. C. A. 70 (C. C. A. 6th Cir.).
It is noticeable that the judgment below was for a gross sum, and that no apportionment was made by the jury among the beneficiaries (Railway Co. v. McGinnis, Adm’x, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785, decided by the Supreme Court April 7, 1913); but this apparently did not concern the defendant, for no allusion to it is to be found in the record.
The judgment below must be affirmed, with costs.
This case is unlike Southern Ry. Co. v. Gadd, 207 Fed. 277, this day decided.