BOSTON & M. R. R. v. BAXTER, 228 F. 257

DODGE, Circuit Judge. The defendant in error (hereinafter called plaintiff) has recovered judgment in the Massachusetts District Court against the plaintiff in error (hereinafter called defendant) for the death of her intestate, Leslie M. Baxter, instantly killed on August 15, 1913, soon after 4 p. m., while in the defendant’s employ as fireman on one of its engines, then hauling an express passenger train bound west from Boston, in interstate commerce. Her suit was brought under the federal Employers’ Liability Act. Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1913, §§ 8657-8665).

The plaintiff’s right to maintain the suit under that act, if the defendant’s negligence caused Baxter’s death, was not questioned. The declaration, in two counts, alleged, in substance;

(1) That Baxter was killed by striking the defendant’s bridge at Prospect street, Somerville, owing to negligence on its

part in its engines, appliances,, roadbed, works, and other equipment; (2) that his death was due .to negligence on the defendant’s

part in erecting, constructing, and maintaining said bridge at an insufficient height above the track, and also in other respects further referred to below. No witness on either side saw the accident happen. Baxter was in the cab of the locomotive with the engineer when the train left Boston at 4:01 p. m. The engineer, who had seen him get down from his seat in the cab before the train had reached the Prospect Street bridge, missed him soon after passing it and stopped the train at Cambridge, a short distance further west.

Baxter was then found dead in the back compartment of the tender, behind the pile of coal carried in its forward compartment. The exceptions state that “a subsequent examination revealed signs establishing the fact that his head had come in contact with the bridge.” His cap was later found 25 to 30 feet west of the bridge, in the ditch north of the track. There was no witness who saw him alive after he left his seat as above.

The bridge, at its lowest point, was 15% feet above the track whereon the train was moving; the top of the tender 11% feet above the track; and the coal carried therein was piled higher than the top of the tender. So much was undisputed. There were differing estimates as to how far above the top of the tender the coal was piled.

The ordinary height at the center was testified to be 13 feet above the track-— i. e., 18 inches above the top of the tender — though there was evidence from which the height might have been found to- have been 3 feet above the top of the tender, but in no event higher than the top of the cab on the engine, which was 15 feet above the track.

No other way appearing in which Baxter could have brought his head where it would strike the bridge after he left the cab and before he was found dead on the tender, the jury might have found that he went from the cab upon the coal in the tender and was somewhere on the 'coal when struck by the bridge. It was not contended that he would have been outside the line of his duties, had he thus gone from the cab upon the coal.

Since it thus appeared that, without regard to any coal above it, the top of the tender could have passed only 4 feet below the bridge, and that the actual clearance available for a man on the coal was necessarily as much less than 4 feet as the coal may have brought him above the top of the tender, the jury might, on the evidence, have found this clearance too small to afford a margin of safety reasonably sufficient under all the circumstances, and might, therefore, have found the defendant negligent, as regarded the safety of an employé whose duties might bring him on the coal, in permitting the tender, so loaded, to be run beneath so low a bridge.

There was evidence that, since the bridge was built, the size of engines in use had materially increased, and that this engine and tender were of the largest type then in use in passenger service on that division of the defendant’s road. The accident happened in broad daylight, on a clear day. There were the usual telltales on both sides of the bridge. No question was raised as to their sufficiency. The. answer alleged negligence on Baxter’s

part contributing to his injury and death; but such negligence, under the act, would have been at most matter for the jury to consider in assessing damages, and none of the assignments of error raise any question relating to- this defense. The evidence before them would have permitted them to find that he reached a position on the coal which brought his head where it would strike the bridge, after the telltale intended to give warning that the bridge was near had been passed, but before the bridge itself was reached. Assignments of error 1-4, inclusive, complain of the admission* of certain evidence introduced by the plaintilf against the defendant’s objection.

(1) A Massachusetts statute (chapter 372, § 87, of the Acts of 1874), offered “as a matter, of evidence that that statute had not been complied with,” was thus admitted.

It provides : “That no bridge for any purpose shall hereafter be constructed over any railroad at a height less than eighteen feet above the tract * * * except by the consent in writing of the Board of Bailroad Commissioners.” ' It was further shown that the board referred to had “taken no action on the bridge.” There is no contention that the class of persons, in whose favor this statute imposes a duty is a limited class, not including the person for whose injuries recovery is sought, as in N. Y. Central, etc., Co. v. Price, 159 Fed. 339, 86 C. C. A. 502, 16 L. R. A. (N. S.) 1103.

Had the plaintiff also shown that the defendant constructed this bridge after the statute took effect, a breach of statutory duty on its part would have been shown which might have been evidence of its negligence toward Baxter. Union Pacific, etc., Co. v. McDonald, 152 U. S. 262, 283, 14 Sup. Ct. 619, 38 L. Ed. 434.. But the plaintiff’s evidence did not go so far.

It showed that the bridge was in existence in 1850; and the only evidence having any tendency to show subsequent rebuilding or reconstruction was that of a civil engineer in the defendant’s employ, who testified that the planking of such a bridge has to be renewed as often as every 10 of 12 years, that the stringers wear two or three times as long, and that in most cases the superstructure would have to be renewed in a period of 40 years. This evidence also was admitted against objection.

Conceding that it might have been admissible in connection with further evidence tending to show reconstruction, -as the case went to the jury, we do not think that any finding that the defendant had in fact reconstructed the bridge since 1874, and had thus violated the statute, would have been justified by the evidence before them. Mere renewal of the planking,-or of the stringers, or of the superstructure, would not have been such reconstruction.

All the above evidence should have been stricken out, or the jury told to disregard it. • The court instructed them, at the defendant’s request, that “There is no evidence of the violation by the defendant of any statute, the violation of which precludes the defendant from the right to have the jury consider the question whether or not the plaintiff’s intestate was guilty of contributory negligence.” But it left them to consider both the above statute and the above evidence as to the usual duration of superstructures in such bridges, upon the general question of the defendant’s negligence as regarded Baxter; and this notwithstanding that both had gone in subject to objection.

We cannot say that the defendant was not thereby prejudiced, and must therefore sustain the first two assignments of error.

(2) Among the respects wherein the second count alleged the defendant to. have been negligent were an alleged failure to allow Baxter time enough to prepare the engine before the train left Boston, and alleged improper coaling of the tender.

Because of these alleged failures to use due care, Baxter, according to the second count, was prevented from getting the engine, tender and equipment ready before the train left, and, because he had been so prevented, found it necessary to go upon the coal in the tender in order to get from there a fire hook which would have been put within reach from the cab before starting, had he been allowed time for preparation as above, thus exposing himself to the risk of being struck by the bridge.

It appeared without contradiction, from evidence objected to, but the admission whereof is not assigned as error, that the fire hook was found, after the accident, in the center of the coal pile on the tender.

It was a two-pronged hook, about nine feet long, used for raking and leveling the fire, and there was evidence that in coaling the engine, if the hook was found “where the coal goes/’ it was usually placed by the man engaged in coaling “in some out o E the way place.” Evidence was admitted against the defendant’s objection tending to show that one hour had been agreed on, between the defendant and its employés, as the time for getting an engine from the Fitchburg roundhouse to its connection with its train in the North station, the engineers and firemen being required to register on duty one hour before their trains were due to leave; that the «engine originally assigned to take out Baxter’s train having been found incapable of being made ready in time within the hour and after being partly got ready, because one of its pipes which had been sent out to be brazed did not arrive as expected, another engine was then substituted, being the engine which did take the train out; that, instead of one hour, 20 minutes only was thus left available for doing everything necessary to make the substituted engine ready and bring it from the roundhouse to the train.

The engineer who ran this engine was allowed to testify, against the defendant’s objection, that, from his experience as engineer and fireman, he though “the fire would have to be refreshed most any place along there,” after the time occupied in running from the North station to the place at which Baxter left his seat in the cab. The above evidence, admitted against objection, is that to which the third and fourth assignments of error refer.

If it was admissible, in that it helped to show what Baxter probably did after lie left the cab, where he probably was when the tender went under the bridge, and therefore how the injury which killed him was in fact sustained, it was not, in itself, evidence of such negligence on the defendant’s part as could properly be regarded either as the sole or as a contributing cause of Baxter’s injury. The nonarrival of the pipe expected, and the consequent impossibility of getting the originally assigned engine ready in time, did not, of themselves, warrant the conclusion that negligence on the defendant’s

part caused the substitution of a different engine and the resulting necessity for getting that engine ready in 20 minutes, and there was no other proof to that effect.

And even if these results could properly have been found due to any negligence of the defendant, it could not be called a natural and probable consequence of such negligence, reasonably to be anticipated, that the hook would be misplaced, that it would be wanted just before reaching this bridge, that it would there be found missing, and that the want of it would lead Baxter to go upon the coal at a time when, by so> doing, he would incur the danger of being struck by the bridge.

The evidence here in question does not appear to have been admitted for any limited purpose, but generally, and the only instruction given the jury regarding it — an instruction duly excepted to by the defendant — was, as set forth in the eleventh assignment of error, that: “If [ttie jury] should find that the plaintiff’s intestate was not given time by the defendant’s agents to prepare his engine, and therefore was obliged to go on the tender after the train had started, then the jury may find the want of sufficient time to prepare his engine evidence of negligence on the part of the defendant.” The negligence here referred to could only have been negligence causing Baxter’s death.

We think the evidence referred to was wrongly admitted for the purpose stated in the instruction, and that the above instruction was, in itself, erroneous in that it permitted tire jury to find as a cause of Baxter’s death something which could in noi proper sense be said to have caused it, viz., the allowance of 20 minutes only, instead of an hour, for getting everything ready before the engine and the tender left Boston, and also to find that there had been a negligent failure by the defendant to allow sufficient time, of which there was no proof.

The above conclusions are enough to prevent us from sustaining the judgment below, although we find nothing in the remaining assignments of error which can avail the defendant. No verdict, in our opinion,- could properly have been directed in its favor, even if all the evidence wrongly submitted to¡ the jury, as above, had been withheld from their consideration; nor would any ruling have been justified that, upon the evidence, Baxter had assumed the risk of the injury from which he died.

The judgment of the District Court is reversed, and the case remanded to that court for further proceedings not inconsistent with this opinion; and the plaintiff in error recovers its costs of appeal.