Citations
- 129 F.2d 1013
Full opinion text
STEPHENS, Circuit Judge.
Appeal from a judgment after jury verdict in favor of the plaintiff-appellee for damages resulting from the death of her husband, an employee of the defendant-appellant Railroad Company, who was fatally injured during certain switching operations in which he was participating. The action was brought under the Federal Employers’ Liability Act, 45 U.S.C.A. §§ 51-59.
Two causes of action were stated in the complaint, and each cause of action set out five separate grounds of alleged negligence on the part of the appellant, to whom we shall refer herein as the Railroad Company. At the close of all of the evidence the trial judge found that four of the alleged grounds of negligence and the proof submitted by the plaintiff in connection therewith were legally insufficient to submit to the jury. The case was submitted on the one remaining ground of negligence, namely, the alleged violation of Company Rule 30 and the defendant’s defenses of the decedent’s negligence and assumption of risk. Company Rule 30 provides as follows :
“Engine bell must be rung when an engine is about to move and when approaching or passing public crossings at grade, stations, tunnels and snowsheds.”
and the defendant’s defenses of the decedent’s negligence and assumption of risk.
The evidence .concerning the accident which resulted in the decedent’s death is, briefly, as follows:
Decedent, was employed by the appellant Railroad Company as engine foreman and was in charge of the switching operations to which we shall hereinafter refer. Working with the decedent and subject to his orders were two other switchmen, Koefod and Hinkle, and the engine crew composed of engineer Richards and fireman Seal.
This crew under the direction of the decedent was making up a train of freight cars in the old Spokane switchyard for transfer to various other roads. Operations were conducted over a series of tracks numbered from 1 to 13 and several other tracks designated locally by such names as the “old main line”, etc. These tracks were all joined by inter-connecting leads and switches. Generally the tracks ran in an easterly and westerly direction.
On the operation in question the engine had headed west on the old main line and had coupled onto two box cars. The engine then backed up easterly pulling the two cars. During this movement the decedent was riding on the stirrup, holding the grab irons on the north side at the west end of the car coupled to the engine, and his switchman Koefod was riding about three or four feet away from him on the north side of the next car. While riding in this position the decedent verbally instructed Koefod to “let these cars go 13”. As the cars passed over lead switch No. 7, which served tracks 7, 8, 9, 10, 11, 12 and 13, the decedent dropped off and gave the engineer the stop sign. The cars stopped past the switch a distance variously estimated at seven to thirty feet. The decedent then walked around the west end of the rear car and crossed the track to No. 7 switch stand which was on the south side of the track. Koefod took up a position some twenty feet north of the cars where he could plainly see the switch points, although the view of the decedent and the switch stand on the south side of the track were obstructed by the cars.
There is no testimony to the effect that anyone saw the decedent throw the switch [since he was obstructed from the view of the witness Koefod as above stated] but Koefod saw the switch points change into line with No. 13 lead. He thereupon signalled the engineer [who was also on the north side] to kick the cars in toward No. 13 track.
The engineer in response to the signal gave the cars a kick or quick push and switchman Koefod pulled the pin uncoupling the cars from the engine permitting the cars to roll on down toward track 13, while the engine stopped and started back to get another car.
Koefod after pulling the pin stepped on the foot board of the engine and almost immediately his attention was called to a man nearby who was pointing back down the track. Koefod looked back and saw the decedent lying on the ground on the south side of the track near the switch over which the cars had just been kicked.
There was no testimony or evidence as to the reason for the decedent being on the track in front of the cars which were kicked. It had been the practice without exception for the man handling the switch on this type of an operation to stay at the switch until the movement had been completed. A witness to. the accident, however, testified that the decedent started across the track from the south to the north and was caught by th