Louisville & N. R. v. Woodward

FOSTER, District Judge. This was an action by M. E. Woodward, administrator, against the Louisville & Nashville Railroad Company for damages for the death of one Ed. Ezell, alleged to have been caused by the negligence of said company. Plaintiff’s pleadings originally contained four counts, and by amendment allowed a fifth count was added, but before the case went to the jury he abandoned the second, third, and fourth counts of the complaint. The material part of count No. 1 is as follows: “On the said date [July 4, 1906] plaintiffs intestate was in the employ of defendant in the capacity of car inspector at or near said Boyles, and as such it became and was his duty to enter between the two rear cars of train No. 101, which train belonged to the defendant and was at that time composed of 17 cars, to couple the air hose between said cars, and while plaintiff’s intestate was so as aforesaid in between said cars engaged in his duties, one Smith, an engineer in the service of the defendant, and who was in charge and control of one of defendant’s engines, negligently backed said engine and 7 cars coupled thereto onto and against train No. 101, while plaintiff’s intestate was between the cars as aforesaid, causing said cars to roll backward and push against and over plaintiff’s intestate, causing severe injuries to him, from which he then and there died.” [6] Count No. 5 is practically the same as count No. 1, with the following addition: “And plaintiff-avers that the said train was being made up under the superintendence of one Allen, who was defendant’s yardmaster at said Boyles, and while in the exercise of such superintendence the said Allen negligently ordered or directed the said train to be made up in such a place as that it was necessary to switch the cars around a curve, and as that the engineer in charge of the engine engaged in making up said train could not see the length of his train, and that the said train was not in view of the employes engaged in making up sai.d train, and by reason of the negligence of the said Allen while engaged in such superintendence plaintiff’s intestate received as a proximate consequence the injuries which caused his death as aforesaid.” Defendant interposed nine pleas, and, on settlement of the pleadings, demurrers were sustained to the second, seventh, and eighth pleas. Defendant’s pleas, as allowed,- set up, first, the general issue; and, second, the contributory negligence of the deceased, on the following grounds: That he knew that the train was being made up on the track at said place, and that it was his duty to wait until it was made up before commencing to inspect it; that it was his duty, and he knew it to be such, to prevent harm by placing a blue flag at the end of each of said cars, and he failed to do so; that he had no duty to perform at the place where he was at the time he received his injuries; that he went in between two cars that were standing still, without -looking to see whether an engine and cars were approaching upon said track;. that there was nothing to obstruct his view; that, had he looked, he would have seen the cars approaching; that the cars were standing on said track, and he knew the train was being made up by the engine and cars approaching, in a curve; and that the position where he was inspecting said cars was on the outside of the curve, where he could not see the engine, and he negligently, knowing that he could •not see the engine, went between the cars. Defendant’s plea No. 2 is substantially covered by the pleas allowed. Plea No. 7 sets up the negligence of plaintiff’s intestate in failing to comply with defendant’s rule No. 315, of Avhich he had knowledge, and plea No. 8 sets up his knowledge of, and negligence in failing to comply with, defendant’s rules No. 316 and No.' 38. The rules referred to are as follows : Rule 315: “They must carefully examine the couplings in trains after they are made up, and see that the links and pins are of proper size, and report to the yardmaster any imperfections.” Rule 316: “When inspecting or repairing ears that they do not wish moved, they must, protect themselves by placing conspicuously a blue signal on both ends'of the car, as provided in rule 38. When necessary to make repairs on a ear in a train, they must place blue signals on both ends of the train before commencing work. If an engine is attached to it, they will-place a blue signal upon the engine.” Rule 38: “A blue flag by day and a blue light by night, placed on the end of a car, denote that ear inspectors are at work under or about the car or train. The car or train thus protected must not be coupled to or moved, until the blue signal is removed by the car inspectors. When a car or train standing on a siding is protected by -a blue signal, -other cars must-not be placed in front of it so that the blue signal will be obscured, without first notifying the car inspector, that he may protect himself.” [7] Defendant offered these rules in evidence at the trial and the court admitted rule 315, but excluded rules 316 and 38. Defendant assigns as error, among other grounds, the sustaining of demurrers to its pleas Nos. 7 and 8, the exclusion of rules 316 and 38, and the refusal of the court to give the following instruction: “If the jury believe the evidence, they will find, for the defendant.” The plaintiff introduced but one witness, C. II. Wilson, also a car inspector on duty at the same time, as to the actual happening of the accident. We excerpt from his testimony as follows: “Train No. 101 was made up at Boyles, the schedule time to leave was 0:50, and the injury occurred a few minutes after 5 o’clock. The fact that a curve existed there did not obstruct the view of an approaching engine to- deceased. The point where this train was made up was the point where it was usually made. Ezell had worked there since December, and I think before that. Rules 315, 316, and 38 were in force at that time. At the time the train struck the deceased it had not been completed. It was necessary to put the four cars on that wére attached to the engine. The car inspectors had no duty to perform with respect to this train until it was made up complete, unless of their own will. If they did anything at all, it was a voluntary act. The orders we got from the master car builder when we went to the yard was to wait until the train was completely made up before going in to make the couplings or doing anything at all. Ezell had no duty to perform with respect to this car until No. 101 was made up complete. There was nothing to do on No. 101, just risking his judgment, like I was risking my judgment.” Joseph Jacob was the only witness who testified for defendant. His uncontradicted evidence is, in part, as follows: “I was foreman of the car department of the Louisville & Nashville Railroad at Birmingham, including- the yard at Boyles, in July, 1906, and knew Ed. Ezell. At that time he was a car inspector. I was general foreman and supervisor over the car inspectors. I instructed him very careful, and never to go between the cars while switching, and told him the danger of it. Rules 315, 316, and 38 were in force. I examined him with reference to his knowledge of the rules before I put him on as extra inspector. I put him on as extra inspector, and he afterwards became general inspector.” The entire evidence is before us, and the undisputed facts seem to be as follows: On the day of his death, July 4, 1906, deceased was employed by defendant as car inspector at Boyles, a suburb of Birmingham, Ala. While he was between two cars of a number standing-on the track, the engine backed up several more cars for the purpose of coupling them to those standing, to complete the train. Because of the shock of the coupling he was thrown down, and the train rolled over him and killed him. He was an experienced car inspector, and was familiar with the rules of the company. At the time he met his death, he was not called on or required to go in between the cars in his line of duty. The train had not been fully made up, and he was only in a position of danger because of his violation of the defendant company’s rules, adopted for the protection of the very class of em-ployés to which he belonged. There was no occasion for haste. The train was not to leave for at least an hour and a half after he went between the cars. The train was being made up at the usual place and in the usual manner of making up trains at Boyles. He knew, or he ought to have known, that the train was not completed when he went [8] in between the cars, and if he had looked he could have seen the approaching engine. We think the demurrers to pleas 7 and 8 should have been overruled, and that rules Nos. 316 and 38 should have been admitted in evidence. Further, we believe that, even on the state of the case as made up, defendant below was entitled to the peremptory instruction in his favor. The judgment of the Circuit Court is reversed, and the case is remanded, with instructions to grant a new trial.