Winters v. Baltimore & O. R.

177 F. 44, 16 Ohio F. Dec. 485, 1910 U.S. App. LEXIS 4332

• Court: Court of Appeals for the Sixth Circuit
• Decided: January 4, 1910
• Docket: No. 1,924
• Status: Published

Opinions

SANFORD, District Judge.

This is an action brought by the plaintiff in error, Winters, against the defendant railroad company, to recover damages for personal injuries sustained by him through the alleged negligent derailment of a car in a work train of the defendant on which Winters was riding. At the close of the testimony offered by the plaintiff, the defendant moved the court to direct a verdictin its favor on the ground, in effect, that the testimony failed to establish its negligence and showed that the plaintiff was guilty of contributory negligence. The court, while of opinion that there was evidence to go to the jury of the defendant’s negligence, sustained the motion on the ground that the plaintiff. had been guilty of contributory negligence and directed a verdict in the defendant’s favor.

The errors assigned all relate to the action of the court in thus directing the verdict. The material facts appearing from the testimony are as follows:

The plaintiff, Winters, was a section hand in the employ of the defendant company as a member of a “floating gang” of about 20 men engaged in repairing track at different points along the line of road, in a section about 33 miles long, extending from Columbus to Newark, Ohio. In doing this work th.ey were carried from point to point on the road in a work train, consisting of an engine, caboose, and two box cars, or camp cars, and other cars when needed. This work train took the men back and forth to and from Pataskala, their headquarters, where they stayed at night. The plaintiff, who had been a member of this gang several months, testifies that he “most generally rode any place” on this train; that whenever they got ready to go, the section foreman would tell them to “get on,” without saying where, and they got on wherever they could; that he and the other men rode any place on the train, and rode on top of the cars about all the time when going backwards and forwards; that this was done in the presence of the section foreman, who, himself rode up there with them, while the train conductor would also always see them up there, although he did not ride up there himself; and that they had kept this up all summer.

On the day of the accident, November 15, 1905, the wc*'k train had been hauling stone in flat cars at Union Station, but in the afternoon took off the flat cars at Summit Station, leaving only the engine, caboose, and the two camp cars, and went to Taylor’s. At Taylor’s the work train backed in on a switch about three-fourths of a mile in length leading to a tile or brick plant, and ran northward on this switch in order to get some Italian laborers working in there, ditching ¿lie track; the purpose being after getting them to go back home to Pataskala, which was about eight miles away. In backing in on ibis switch the engine was farthest south; next, the caboose; next, the camp car of the Italians; and, last, the camp car of the “floating gang,” which was at the north or front end of the train as it hacked in.

In running from Summit to Taylor’s, Winters had ridden1 in the caboose; but when tlie train stopped to let them in on the switch he got out of the caboose and climbed up on top of the camp car of liis gang, at the north or front end of the train, as it backed in. He found the brakeman on top of this car, and they continued to ride on top together. All the other members of the work crew were in their camp car. It was then about 4:45 p. m., and just about dusk. The train -was running about live or six miles an hour. At tlie time of the accident the train was running northwestwardly. Winters and the brakeman were looking west toward the brickyard. When near the brickyard the brakeman said there was a plank on the track, “right onto it, the way he talked,” and halloed, “jump.” The brakeman then jumped from the car, and Winters jumped after him in the same direction. The north or front trucks of the camp car on which he was riding were thrown off of the track; and while the brakeman jumped dear of the train, Winters landed between the tracks, and his leg was caught about tlie knee, and run over by the south trucks of the car, which did not leave the rails; the train stopping in a short distance after the north pair of trucks left the rails. His leg was so badly crushed that it had to be amputated. The other members of the “repair gang” riding inside of the camp car appear not to, have been injured.

A subsequent examination of the track showed that just at the point where the switch track was crossed by a wagon road that led across to tlie brickyard, part of tlie material in the crossing had been carried off to the north, including a plank six or eight feet long, about two indies thick, and six to eight inches wide, which was found lying crosswise of the track, across one rail, at the north end of the camp car, from six inches to a foot from the north trucks; this plank having some splinters knocked off and showing fresh wheel marks. It further appeared that the switch track leading from Taylor’s to the brickyard had been there for some five or six years, since the 'brick plant was started, and was used by the railroad company every day to take brick out from the brick plant, running some five or six trains every day. The road crossing at which the derailment occurred had been there for some years. It was the crossing that gave access to the brick plant, and was also used generally by the people who lived across the switch track, and crossed daily by a number of foot passengers and two or three wagons.

A short time prior to the accident this switch track had been raised at this point by the gang to which Winters belonged. They had worked on the track a couple of weeks altogether, off and on, and had worked close to this crossing for several days, raising the track along there from six inches to a foot. One witness states that they had been working there from two weeks to eight days before the accident; another that they had worked there up to the time of the accident. It further appeared that there had formerly been thrown in this crossing planks of different lengths, ties, and fence rails; that when the “floating gang” began work at the crossing they threw this material out, and after they had raised the track they put back the old planks, ties, and fence rails in the crossing, without spiking or nailing down either the planks or fence rails; and that after this repair work had been done these planks and rails remained as before, so loose that when a buggy passed over the crossing they would flop up and down, and would give up and down when a footman passed over. There is evidence that they were loose in this way for several da)^s before the accident, and one witness testifies that on the morning of the accident the condition of these loose planks and rails was such that when he crossed with his buggy he did not feel like riding across and got out and led his horse over. Winters himself states that when the foreman of the “floating gang” had them throw back the planks, ties, and rails in the crossing, he “never heard him order it spiked down.” It does not appeal-, however, how many days this was before the accident, or whether Winters was one of the last men to work there, or whether he knew that no further work had been done at the crossing since that time, or whether this track was inspected by any other employ és of the company after the “floating gang” finished working •there.

Under these facts we are of opinion that the court was in error in directing a verdict in defendant’s favor.

1. There was clearly evidence tending to show negligence on the part of thq defendant in leaving this track in the condition in which it was at the time the derailment of the car occurred. The court below, in the opinion on the plaintiff’s motion for a new trial, expressed, inferentially at least, the opinion that the plaintiff was a passenger at the time of the accident, and that the proof of the derailment and the plaintiff’s injury were prima facie proof of the defendant’s negligence. The defendant earnestly insists, however, that the plaintiff is not to be regarded as a passenger at the time of the accident, but that under the doctrine laid down by this court in Louisville & N. R. Co. v. Stuber, 108 Fed. 934, 48 C. C. A. 149, 54 L. R. A. 696, he must be 'regarded as being carried to. and from his place of work as a servant of the railway company, and not as a passenger, and that hence, under the doctrine of Texas & P. R. Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136, and Patton v. Texas & P. R. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, as the plaintiff occupied the relation of an employé at the time of the accident, no presumption of negligence arises from the mere fact of the accident.

While it seems fairly inferable from the facts appearing in the record that the members of the “floating gang” were being carried to and from their place of work as a necessary incident to the discharge of the duties of their peculiar employment, and not for a purpose disconnected with that employment, so that under the doctrine of the Stuber Case they should be regarded .as being carried as employés, rather than as passengers, we are of opinion that, independently of this question and of any presumption of negligence that might have arisen from the relation of carrier and passenger, there was sufficient affirmative evidence tending to show negligence in the repair and maintenance o f the track at the road crossing to have required the case to have been submitted to the jury on this question. It is clear that, even if Winters was being carried as a servant in the discharge of his duty and as an incident of bis employment, the negligence of the employe charged with the master's personal and positive duty of maintaining the roadbed in safe condition for the performance of the work required of the servants, would not be negligence of a fellow servant, under the fellow servant doctrine, but negligence of the master for which it would be responsible. Hough v. Railway Co., 100 U. S. 213, 25 L. Ed. 612; Gardner v. Railroad, 150 U. S. 319, 355, 14 Sup. Ct. 140, 37 L. Ed. 1107; Swift v. Short (C. C. A., 8th Cir.) 92 Fed. 567, 34 C. C. A. 545; Snow v. Railroad, 8 Allen (Mass.) 441, 85 Am. Dec. 720; Ford v. Railroad Co., 110 Mass. 241, 14 Am. Rep. 598. See, also, the opinions of this court in Valley Ry. Co. v. Keegan, 87 Fed. 849, 31 C. C. A. 255, Herrick v. Quigley, 101 Fed. 187, 41 C. C. A. 294, and Lake Shore Ry. Co. v. Eder (decided Dec. 7, 1909) 174 Fed. 944, 948.

2. We are of the opinion that under all the circumstances of this case the court was in error in holding, in effect, that the evidence established as matter of law the contributory negligence of the plaintiff, so as to require that this question be withdrawn from the consideration of the jury and peremptory instructions given in defendant’s favor. When, in an action to recover damages for personal injuries, the inference to be drawn from the facts is not so plain as to make it a legal conclusion that the plaintiff was guilty of contributory negligence, the question whether he was or was not so guilty must be left to the jury. Northern Pacific Railroad v. Egeland, 163 U. S. 93, 16 Sup. Ct. 975, 41 L. Ed. 82.

Contributory negligence has been' well defined as a want of ordinary care upon the part of a person injured by the actionable negligence of another, combining and concurring with that negligence, and contributing to the injury as a proximate cause thereof, without which the injury would not have occurred. 7 Am. & Eng. Enc. Law (2d Ed.) 371; Alaska Gold Mining Co. v. Keating (C. C. A., 9th Cir.) 116 Fed. 561, 566, 53 C. C. A. 655: Alabama Gaslight Co. v. Railroad Co., 86 Ala. 372, 5 South. 735; Moakler v. Railway Co., 18 Or. 189, 22 Pac. 948, 6 L. R. A. 656, 17 Am. St. Rep. 717; Woodell v. Improvement Co., 38 W. Va. 23, 40, 17 S. E. 386. See, also, 1 Reach on Cont. Negl. § 7; Missouri Pacific Ry. Co. v. Moseley (C. C. A., 8th Cir.) 57 Fed. 921. 925, 6 C. C. A. 641; Southern Bell Tel. & Tel. Co. v. Watts (C. C. A., 4th Cir.) 66 Fed. 460, 466, 13 C. C. A. 579; Motey v. Marble & Granite Co. (C. C. A., 8th Cir.) 74 Fed. 155, 157, 20 C. C. A. 366; Plant Inv. Co. v. Cook (C. C. A., 5th Cir.) 74 Fed. 503, 20 C. C. A. 625. In 7 Am. & Eng. Enc. Law (2d Ed.) 375, it is said :

“These elements of contributory negligence, namely, the want of ordinary care and the proximate causal connection of that want of care with the injury. being considered in their order, we find the doctrine established by an overwhelming weight of authority that there must have been a want of ordinary care, under the circumstances of the case, contributing to the injury as an efficieni and .proper cause thereof, before contributory negligence can exist” —citing many cases in support of this proposition.

However, in order to warrant a finding that negligence, or an act not amounting to wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable cause of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances. Milwaukee Ry. Co. v. Kellogg, 94 U. S. 469, 475, 24 L. Ed. 256; Scheffer v. Railroad Co., 105 U. S, 249, 252, 26 L. Ed. 1070; Missouri Pac. Ry. Co. v. Moseley, supra; McDonald v. Snelling, 14 Allen (Mass.) 290, 92 Am. Dec. 768. See, also, St. Louis Railway Co. v. Bennett (C. C. A., 8th Cir.) 69 Fed. 525, 16 C. C. A. 300.

The question as to what is the proximate cause of an injury is ordinarily one of fact, for the jury to determine in view of the accompanying circumstances. Milwaukee Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Southern Pac. Co. v. Yeargin (C. C. A., 8th Cir.) 109 Fed. 436, 439, 48 C. C. A. 497.

Under all the circumstances of this case, especially in the absence of clear proof that Winters knew or had reason to know that this crossing had not been put in safe condition after he saw the last work done upon it, and in view of the previous habit of the employés of riding upon the top of the camp car with the knowledge both of the section foreman and the train conductor, under such circumstances that a license to ride upon the top of the car may, it seems, be fairly implied (Ellsworth v. Metheney, 104 Fed. 119, 122, 44 C. C. A. 484, 51 L. R. A. 389), and in view of the fact that the train was moving at a slow rate of speed upon a switch track, we are of opinion that the evidence, as a whole, did not warrant the conclusion, as a matter of law, that the plaintiff was guilty -of negligence in riding upon the top of the car which contributed to the injury as one of its proximate causes, and that it should have been left to the jury to determine whether in thus riding upon the top of the car he was under the circumstances guilty of negligence of which the injury received was a natural and probable consequence which ought ■to have been foreseen in the light of the attending circumstances, so -as to make it a proximate cause of the injury and bar any recovery to ■which he might otherwise have been entitled.

The present case is, in our opinion, clearly distinguishable from those of Railroad Co. v. Jones, 95 U. S. 439, 24 L. Ed. 506, and Erie Railroad Co. v. Kane, 118 Fed. 223, 55 C. C. A. 129, upon which the •defendant chiefly relies.-

In Railroad v. Jones, supra, in which it was held that a laborer, who was -riding on the pilot of a locomotive, without knowledge of any agent of the railroad company, and after he had been on several occasions forbidden to ride there, and -was- injured in a collision with another train, was guilty of contributory - negligence that barred recovery, the plaintiff’s position on the pilot, as said by- Mr, J ustice Swayne in delivering the opinion of the court, was “next to the cowcatcher, and obviously a place of peril, especially in case of a collision.” And in the subsequent case of Northern Pacific Railroad v. Egeland, 163 U. S. 93, 96, 16 Sup. Ct. 976, 41 L. Ed. 82, this case and that of Kresanowski v. Northern Pacific Railroad (C. C.) 18 Red. 229, were distinguished by tlie court in these words:

“The persons injured in those eases were seated in the first ease on the pilot of- the engine, and in the other on the front beam of the engine, with his feet over the pilot. The positions were most dangerous, and the danger was plain and obvious at the first sight. Xo other place on either train was as dangerous. The great and obvious danger of the positions in which the plaintiffs voluntarily placed theiuselves is the material and coni rolling fact upon which the cases were decided.”

In Erie Railroad Co. v. Kane, supra, it was held by this court that where the fireman on a .switch engine, while it was running with several cars in front of it, had without reasonable cause left his proper place in the cab, and was riding on the front of the engine, engaged in cleaning the number below the headlight, when this work was not required, or even authorized, and while so engaged was killed as the result of a collision with another switch engine, his own contributory negligence barred recovery. This holding was, however, plainly rested in the opinion upon the rule of ‘'obvious” danger laid down in the Jones, Krcsanowski and Rgeland Cases; it being stated in the opinion of the court (page 233 of 118 Fed., page 139 of 55 C. C. A.) that riding upon the front of the engine—

“is so dangerous that it must lie regarded that it is negligence for one to he there under such circumstancos. In the event of a collision there is no place so dangerous for one to be as between cars, or between a car and an engine, as here, except it be on the front of the engine with no cars in. front of it.”

The facts in the present case are materially different from those in the Jones and Kane Cases, both in the obvious danger of the position assumed, a position on tlie top of a car being less dangerous than one on the front of an engine, and in the -proximate character of the negligence as a cause of the injury, there being evidently more ground for reasonably anticipating an injury from a collision by riding upon the front of an engine than for apprehending injury from derailment by riding upon the top of a car.

The same distinction applies to many other of the cases relied oil h) the defendant, in which the proximate causal connection between the negligence and tlie injury received was more clear and direct than in the case at bar, as, for example, in Atchison Railroad Co. v. Lindley, 42 Kan. 714, 22 Pac. 703, 6 L. R. A. 64(5, l(i Am. St. Rep. 515, in which a person riding on the top of a car was injured by a sudden jerk of the train, and Ft. Scott Ry. Co. v. Sparks, 55 Kan. 288, 39 Pac. 1032, in which a person riding on the top of a caboose wras injured by being' knocked off by an overhead bridge.

It is true that in Little Rock v. Miles, 10 Ark. 298, 48 Am. Rep. 10, it was held that a drover riding on the top of a cattle car, and injured by derailment of the train, was barred from recovery by his contributory negligence; it being said in this case that a passenger who voluntarily and unnecessarily rides upon the top of a car is not in the exercise of that discretion which the law requires. This expression has been repeated in other cases. We do not, however, concur in this as the statement of a general rule of law applicable in all cases, and as implying that a person riding upon the top oí a car, without regard to the speed of the train, the character-of the road and other circumstances,.is necessarily, as a matter of law, to be held guilty of negligence which contributes as a proximate cause of ah injury resulting from a derailment of the train or other like cause.

The case will accordingly be remanded to the court below) with directions to set aside the judgment in favor of the defendant and grant the plaintiff a new trial.