Summary
In Slocum v. Erie Railroad Co. (C. 0. A.) 37 F.2d 42, 44, the court said: "The jury were allowed to infer that there was an unusual jar from the mere fact that the decedent fell from the car.
Summary of this case from Chicago, R. I. G. Ry. Co. v. HarrisOpinion
No. 113.
January 6, 1930.
Appeal from the District Court of the United States for the Western District of New York.
Action under the Federal Employers' Liability Act ( 45 USCA §§ 51- 59) by Lida M. Slocum, as administratrix of the estate of her deceased husband, Guy C. Slocum, against the Erie Railroad Company, to recover damages for his death. Judgment for plaintiff in the amount of $5,119.40, and defendant appeals. Reversed.
See, also, 26 F.2d 277.
Slocum met his death while employed as a switchman in a crew of the defendant, Erie Railroad Company, at its Elmira Yards. Death occurred while the crew, of which he was a member, was engaged in making a so-called "flying switch" in order to place five cars on a siding. Slocum uncoupled these cars from a string of eleven in which they were included. He then went to the head of the fifth or last car, and called to the engineer, Boyd, whose engine had already been attached to the first car of the five, to ask the fireman to uncouple the engine in time to make the flying switch. Boyd gave this direction to the fireman, and Slocum stood at the head of the fifth car with "his left foot in the stirrup on the car, and ahold of the grabiron with his left hand and * * * gave the signal with his right hand." (Fol. 605.) As the engine started, Boyd saw Slocum climb up on the right side of the front end of the fifth car (which was a low one known as a gondola) and disappear behind the high car which was in front of the gondola and was the fourth from the engine in the series.
When the engine had got about 100 feet from the switch, the engineer shut the throttle in order, by turning off the steam sufficiently, to slacken the movement of the train and enable the fireman to pull out the pin that coupled the engine to the string of cars. As soon as the fireman felt the slack come in, he withdrew the coupling pin, the engine shot ahead of the cars, and, after it had passed the junction between the main track and the siding, the switchman Quinn threw the switch, so that the cars would leave the straight track and run down the siding. Neither the engineer nor the fireman attempted to give the deceased any slacking signal.
The flying switch, as a railroad operation, was performed with success, but, after the engineer had stopped his locomotive, he looked down the track and saw the dead body of Slocum lying on the south rail of the track 150 feet from the point where he had uncoupled the five cars from the eleven and approximately 550 feet from the switch points. (Fols. 112-115.) No one saw Slocum fall from the car, and no direct proof was offered of the cause of his death. It is contended that he was shaken off by the jolting of the car on which he was riding at the time the engineer put in the slack. But if, as the testimony indicates, the engineer turned off the throttle and put in the slack 100 feet before the engine got to the switch and the distance from the front of the engine to the head of the fifth car where Slocum was last seen was 245 feet, then Slocum in some way fell off the train 205 feet before the steam was turned off and the slack was put in. There was no evidence that Slocum was still on the car when the engineer turned off the throttle, and all the testimony indicated that he had fallen off long before this occurred. How Slocum came to fall was not shown, but it seems evident that the closing of the throttle without warning could have had nothing to do with the accident.
The contention that there was any jolting beyond what is usual and inevitable is based solely on the testimony of the engineer, elicited toward the end of defendant's case largely by reason of the form of the cross-examination used. The pertinent portion of this testimony is the following (folios 668-674):
"Q. And about how far did the engine proceed after you * * * closed the throttle before you think the slack came in? A. Probably about eighteen or twenty feet.
"Q. So it was done rather quickly? A. Yes, sir.
"Q. And abruptly, is that true? A. Yes, sir.
"Q. The slack came in quite quickly. You did not give any signal to anybody that you were about to shut off? A. No, sir.
"Q. You just shut off and the slack came in, in fifteen or eighteen feet, and then you scooted? A. Yes, sir. * * *
"As a general thing, you can feel the slack when the cars come in. You can feel the jolt on the engine when they slack in.
"Q. You felt the slack on the engineman's seat when the slack came in on those five cars? A. Yes, sir."
All the witnesses who said anything about the subject testified that there was no rough handling of the train; all handholds and brakes were in order, and the speed of the cars was moderate.
The defendant railroad company had three rules which are said to have been disregarded. They were the following:
"Crews assigned to yard switching shall consist of not less than one conductor and two brakemen."
Rule 454 for conductors: "They are required to see that when switching is to be done, both the engineman and fireman are on the engine so as to observe signals from both sides of the train."
Rule 455 for conductors: "They are forbidden to allow running, or flying switches to be made when it can be avoided, and when unavoidable, it is required that such movements be made with all the care necessary to prevent accidents."
Delaney, one of the crew for yard switching, was off duty at the time of the accident, and, because of his absence, the crew for yard switching consisted of but two persons, instead of three. The fireman was not in the engine cab, but was down on the footboard so as to be ready to uncouple the string of cars from the engine when the engineer put in the slack. It would have been Delaney's duty to pull the pin and uncouple the engine, had he been present during the switching operation.
The siding into which the five cars were to be shunted had other cars in it. If the engineer had not made a flying switch, he would have been obliged to remove the cars already on the siding.
At the close of the case, the defendant moved for the direction of a verdict on the ground that the plaintiff had failed to prove any negligence, likewise on the ground that, if any negligence had been proved, it was not the cause of the injury, and on the further ground that the decedent had assumed the risk. The motion was denied, and the court left all the questions of negligence and assumption of risk to the jury, who rendered a verdict of $5,000 for the plaintiff.
Stanchfield, Collin, Lovell Sayles, of Elmira, N.Y. (Halsey Sayles, of Elmira, N.Y., of counsel), for defendant-appellant.
Mortimer L. Sullivan, of Elmira, N.Y., for plaintiff-appellee.
Before MANTON, AUGUSTUS N. HAND, and CHASE, Circuit Judges.
The plaintiff seeks to establish negligence by showing that the defendant railroad company disregarded the standards of care set up by its own rules, but it is hard to see how the disregard of these rules could have had anything to do with the death of plaintiff's husband.
In the first place, all the testimony indicates that Slocum fell from the car on which he was riding, through some unknown cause, long before the engineer closed the throttle and put in the slack. Therefore, even if Delaney had stayed on duty and had uncoupled the engine, and if the fireman had remained in the cab so as to give Slocum a slacking signal, the accident would not have been avoided. Whatever may have been the cause of Slocum's death, it was not the neglect to give a slacking signal, because he evidently fell before any vibration from putting in the slack could have occurred.
Moreover, even if the neglect to observe the company's rules can be thought to have had any relation to the accident, Slocum participated in the violation, and so cannot be heard to complain of it. According to the undisputed testimony, he asked the engineer to have the fireman leave the engine in order to come down and uncouple the engine from the moving cars, and he even gave the original signal to the engineer to start the train. If rules were violated, he was an active participant in their violation. Unadilla Ry. Co. v. Caldine, 278 U.S. 139, 49 S. Ct. 91, 73 L. Ed. 224; Unadilla Ry. Co. v. Dibble (C.C.A.) 31 F.2d 239.
In addition to all this, there was no proof that it was the practice of the defendant for the fireman or engineer to give a signal that the engineer was to put in the slack. The ordinary vibration which is likely to occur in railroading is not evidence of negligence which should be submitted to a jury. There must be proof of some unusual jar, and this was altogether lacking in the present case. Gulf M. N.R.R. Co. v. Wells, 275 U.S. 455, 48 S. Ct. 151, 72 L. Ed. 370; Toledo, St. L. W.R.R. v. Allen, 276 U.S. 165, 48 S. Ct. 215, 72 L. Ed. 513.
If there was any risk from such a slight jar as may have occurred here, it was an inevitable hazard of the undertaking which the decedent assumed. Missouri Pacific R.R. Co. v. Aeby, 275 U.S. 426, 48 S. Ct. 177, 72 L. Ed. 351; Toledo, St. L. W.R.R. v. Allen, 276 U.S. 165, 48 S. Ct. 215, 72 L. Ed. 513; Delaware, etc., R.R. Co. v. Koske, 279 U.S. 7, 49 S. Ct. 202, 73 L. Ed. 578. The jury were allowed to infer that there was an unusual jar from the mere fact that the decedent fell from the car. The witnesses testified to no such jar, but quite to the contrary, and there was no proof of how or why Slocum fell. He may have stumbled or fainted. Whatever the cause, there was no evidence justifying the inference that it was the neglect to warn him of the turning off of the steam and the running in of the slack.
But it is insisted on behalf of the plaintiff that, even if no signal to Slocum was necessary and the maneuver was properly performed, yet a flying switch was avoidable, and therefore, under the defendant's rule, should not have been made at all. It was shown that flying switches were frequently employed at the place in question, and that the rule was practically construed as permitting flying switches where practical convenience required. The rule itself did not assume that they were dangerous if carefully made, and provided that, when made, they should "be made with all the care necessary to prevent accidents." Not only was it established, as already stated, that Slocum fell from the car before the engine left the string of cars or the engineer put in the slack, but, irrespective of this, the proof failed to show any jar or other act that was dangerous to Slocum and was not usual in any kind of railroading in which a switchman had to climb and ride a freight car. But, if any rule of safety was violated, he participated in the violation.
From whatever point of view we analyze the evidence of this unfortunate accident, we reach the conclusion that there was no proof of negligence on the part of the railroad which caused the death of Slocum. The motion by the defendant for the direction of a verdict should have been granted.
Judgment reversed.