CINCINNATI, N. O. " T. P. BY. CO.
t7. HEALER.
725
CINCINNATI, N. O. & T. P. Ry. Co.
'V.
MEALER.
(Circuit Oourt of Appeals, Sixth Circuit. June 6, l.8Il2.) I. MASTER AND SERVANT-PERSONAL IN1URIEB-PROXIlUTE CAUSB-R.ULWAT SWITCHMAN.
A yard switchman in uncoupling cars was walking or running with the train, for the purpose of lifting the pin, when he stumbled over a piece of coke on the track, and his arm was thrown between the deadwoods and injured. Held, that the stumbling was the proximate cause of the injury, and evidence as to the defective condition of the drawbar was immaterial. As it was the duty of the section men to remove coal or coke from the there can be no recovery for their negligence in failing to do so, since they ana the switchman were coservants. The switchman testified that he was about 22 years old, had been employed as such for three weeks, had known the tracks in the yard for three months, and knew all that was necessary to enable him to couple and uncouple cars. It was conceded that at the time of the injUry he was uncoupling cars in a necessary and proper lDanner. Held. that it was not necessary for the defendant to show that it had instructed, or offered to instruct, the plaintiff how to couple and uncouple cars.
t.
S.+.ME-FELLOW SERVANTS.
a.
SAME-DUTY TO INSTRUCT SWITCHMAN.
In Error to the Circuit Court of the United States for the Southern Division of the Eastern District of Tennessee. Action by Charles Mealer against the Cincinnati, New Orleans & Texas Pacific Railway Company for personal injuries. Verdict and judgment for plaintiff. Defendant brings error. Reversed. Lewis Shepherd and Edward Calston, for plaintiff. Fred L. Mansfield and T. M. BurkeU, for defendant. Before JACKSON, UircuitJudge, and SAGE and SWAN, District Judges. SAGE, District Judge. Upon. the trial of this case the following facts appeared in evidence: On the 28th of October, 1890, the defendant in -error, Mealer, wae a switchman in the employment of the railway company, plaintiff in error, in its yard at Oakdale, Tenn. Shortly after nightfall a through freight train from the north arrived, and was taken .charge of by the night yard master. While it was yet moving, he directed Mealer to cut off the caboose and one car. Mealer went between the cars, which, it is shown by the evidence and is conceded, was necessary and proper, and, finding that the coupling pin was pushed back under the draft timbers, so that he could not pull it out, held to the pin, running along (in another part of his testimony he said "walking") and keeping pace with the motion of the- train, was expecting the engine to slack ahead a little, so that the pin would be released from under the end sill, and could be lifted out. Just then the forward car "surged ahead and right back again," and, according to his own testimony, which is the only evidence giving the particulars of the accident, he his foot against a piece of cOKe or coal on the track, and, stumbling, ,partially fell. That threw his arm down between the deadwoods, being nothing on the car to hold to. At the same time the rear
:'. ······nDERAL''REPORTER,
vol.
car ran up the car forward', and his arm was caught and crushed between the deadwd6ds,which were placed, as is usual, on each side of the drawheads, so as to protect the cars and prevent the breaking of the drawbars if a drawbar out of order, Or not strong enough to keep the cars apart. He testified that to the best of his knowledge what he sttuck his foot against was a piece of coke, which had fallen off from the cars thE'y had been coupling, and that if there had been a spring in the drawhead it would not have been driven back under the sill and fastened. Mealer had been in the employment of the railway company some three ,months, at first as yard clerk, from which service he was transferredjabout three weeks before he was hurt, by the general yard master to the night yard master's department, and set to work as a switchmap., without having had experience as such, excepting, as he testifies, that'he had switched a few nights at Oakdale, when any man was off. Before engaging in the employment of the railway company, he had been a brakeman on another railroad, but for what length of time does not appear. He was 22 years of age when he received the injury. He testified also that he was not instructed by the night yard master how to couple and uncouple cars, but that he .knew how to do that work, and that such instructions were not necessary. He Iurther testified. that he had gone over, the yard daily, from the time of his first entering the servicaof the company, and knew its condition; that they hauled about one trliin of 25 cars of coal or coke there per daYj that he had frequently seen lumps of coal and coke fall from the cars, but did not notice any on the track where the accident occurred on that or the previous even. ing. . The night yard master, called as a witness by Mealer, testified that in coke sometime fell off when couplings were madej that that was a'usual thingj that he made an examination at the place of the accidentimmediately after it occurred, and saw pieces of coke on top of thecindel'soll the track,and that they were "a couple ofinches through, 01' it might have been largerj" also, that when a person is running between the cars he is likely to be thrown off his balance by striking his f06t against a small lump of coal or coke. The uncontradicted testimony of the road master, and the only testimony on that subject, was that it was the duty of the section boss and his hands, (there were eight or nineo! them,) to go through the yards daily, and remove all obstructions, including lumps of coal or coke, from the tracks, and keep them cleared up. All testimony tending to prove that the spring of one of the drawbars w8sweak or defective, paving been admitted subject to exception, was withdrawn from the jury on the motion of counsel for the railway companYfthe court holding that it was not competent, because there was no complaint of any such defect in the When the evidence itrthe case was all in, counEle] for the railway company moved the court to 'direct averdict in its favor. The motion was overruled. The case was then argued and submitted to the jury uuder
CINCINNA:x'!, N. O. & T. P. RY. CO.t:I..;MEALEB.
727
the instructions of the court, and a, verdict was returned against the rail· way company for $4,750. The court instrncted the jnry that, the employment of a. railroad switchman was necessarily dangerous, but that those 'Who enter it, knowing that it is dangerous, assume the natural and ordinary risks and perils involved, as well as all risks of injuries resuItinp; from the negligence offellow servants; also, that if in this case the tracks were in bad condition, or strewn with lumps of coal or coke, and Mealer was passing over the tracks every day, and saw that they were in that condition, and, continuing in the service of the railroad company, suffered injury therefrom, he had no to complain. These instructions were entirely correct, and, inasmuch as the only evidence in the case, including the indisputable testimony of Mealer himself, was that he had full and complete knowledge of all the conditions referred to, they should have been supplemented by a direction to the jury to return a verdict against him. But instead, the court proceeded to charge the jury that if they believed that Mealer was without experience or training, that no effort was made by any officer of the company to train him, and that by reason of his inexperience and want. of knowledge he was not in a condition to appreci,ate the of his sen'ice, and he suffered injury under the direction of some one placed over him, then he ought to recover; and the court referred to the night yard master, and the chief yard master, each by name, as the representatives of the company placed over and directing and controlling him. There was no evidence in the case warranting any of these instructions. Mealer had been acting as switchman in that yard about ,three weeks before the a.ccident, and he himself testified that he had known the yard and the tracks three months, and had been over them daily, and that he was so familiar with the mode of coupling and uncoupling cars that he needed no instruction on that subject. More than that, it appears from the testimony, and it is conceded by his counsel in their brief, that he went ahout the business of uncoupling the cars at the time whenhe was injured in the manner that was necessary and proper. The testimony was all one way. Instead of directing a ver-' dict, the court allowed the jury to make a finding not warranted in law or by the testimony, and on thesame day a motion for new trial was overruled, and judgment for the full amount entered up. Cases are cited in support of the instructions given the jury with reference to the duty ofemployers to warn inexperienced servants. The law upon that point is well settled, and needed no verification, but it has no application to tqis case, as is above shown. Much is said about the drawhead being out of repair and in bad condition, but it is not even pretended that there was any defect, excepting in the spring, and that mainly by inference; and all the evidence with reference to the spring was properly withdrawn by the court from the consideration of the jury. If the motion to withdraw that testimony. had been overruled, and it were conceded that it was sufficient to sustain a finding that the drawbar was in bad condition,that would not affect the case,because the only proper conclusion that can be drawn frolll. the evidence is that the
728
I'EDERAL REPORTER,
voL 50.
stumbling, from coming into contact with the lump coke on the track, was the proximate cause of the injury. Mealer testifies explicitly that that threw his arm down between the deadwoods a moment before they came together, and not only testifies to it, but repeats it. It is therefore a matter of no consequence whether the drawbars were in good or bad condition. Railway 00. v. Kellogg, 94 U. S. 469. As to the coal or coke upon the track, the only testimony in the record on that subject is that it was the duty of the section men to remove it, and to keep the tracks cleared up. They were Mealer's fellow servants, and he could not recover for injuries resulting from any failure of duty on their part. Whether the night yard master or the general yard master was a representative of the railroad company as to Mealer is not at all material. The court properly instructed the jury that his entering upon the service of the company as a switchman must be regarded as voluntary. The general yard master was not present, and no instruction was given Mealer by the night yard master on the occasion of his receiving the injury, excepting to uncouple the cars, or, in other words; to render, under ordinary and usual conditions, the very service that he had, by his contract of employment, engaged to render, and the incidental and natural risks of which he had thereby agreed to assume, and which he did assume when he entered upon the employment. The motion to direct a verdict was rightly made 8t the close of all the evidence; RandaU v. Railroad 00.,109 U. S. 481,482,3 Sup. Ct. Rep. 322. The exception taken to the overruling of that motion, and to the pottioDs of the charge above considered, are sustained. The judgment below will be reversed at the costs of the defendant in error.
of
BALTIMORE
& 0., R.
CO. tl. ANDREWS.
(Circutt Court qf
S1zth CircuU. June 8, 1899.)
A brakeman on one train is a coservant of the conductor and enJPneer of another train, and, if killed in a collision cau8ed entirely by the negligence of the latter, the company is not liable. RaUroad Co. v. ROBB, 5 Sup. Ct. Rep. 1&, 112 U. s; 877, distinguished. .
Error to the Circuit Court of the United States for the Northern District of Ohio. Action,by Samuel P. "Andrews, administrator of the estate of Charles Reynolds,ideceased, against the Baltimore & Ohio Railroad Company. Verdict and judgment for plaintiff. Defendant brings error. Reversed. J. II. OoUim, for plaintiff. W. W. Skiles, for defendant.
