SWANER v. UTAH IDAHO CENT. R. CO., 54 F.2d 863

LEWIS, Circuit Judge. Trespass on the ease.

Plaintiff alleged in his complaint: that on September 8,192-7, he was employed by defendant as a motorman on its eleetrie railway, operating the motor ear of a freight train from Ogden, Utah, destined to points in the State of Idaho, rand was so engaged in interstate commerce; that the Sanders on his motor were out of repair and the sand would not fall on the rails; that plaintiff was directed by the trainmaster, who was then acting as train-conductor, to straighten the sandpipes; that plaintiff went to the front of the motor while it was moving slowly, and while standing in the stirrup on the side of the motor car he attempted to kick the sandpipe into its proper plaee; at the time plaintiff was kicking the sandpipe under the direction of said conductor, who knew plaintiff’s position and what he was attempting to do, the conductor carelessly and without warning caused the train to move suddenly forward and as a result of the sudden forward movement a wheel of the motor ear passed over plaintiff’s right foot.

He was taken to the hospital and the foot was amputated. Defendant answered that it was using due care, and the accident was caused by plaintiff’s negligence; that plaintiff knew and appreciated the danger and assumed the risk of incurring the injuries; that plaintiff was warned and directed not to kick the sand-pipe; that plaintiff acted contrary to defendant’s rules and instructions to employees. A jury was called and empanelled, and after each party had introduced evidence and closed, -the court over the objection and exception of plaintiff sustained defendant’s motion for a directed verdict in its favor.

That action presents the issue here. Plaintiff testified to his employment, as he had alleged in his complaint; that D. S. Clark was acting as conductor on the train and in charge thereof, his duties in

part consisting in directing the men what to do in the movement of the train; that they left Ogden on the morning of September 8fch, and when they got to Peery Hill he noticed the train was slipping; that he increased, the speed; he asked the brakeman to look at the sand-pipes, the brakeman reported that the pipes were to the left of the wheels instead of being in front of them, and the sand was going off the rail instead of on it; that the appliances were so arranged that he could have the sand run down on the rail when necessary, this was to keep the wheels from slipping; he told the brakeman it would have to be fixed, and the conductor told plaintiff not to let the brakeman do it but to go and 'fix it himself; it was his duty to obey the conductor’s orders; he went down to kick the sandpipe to get it in line with the wheel, and in order to do that he put his left foot in the stirrup at the left front comer of the electric motor car; the stirrup consisted of two strips of iron and is used by employee^ to climb onto the platform of the motor ear, two grab irons are bolted to the frame of the motor car for handholds, and the stirrup and handholds on the side near the forward end are used by employees for climbing on and off the motor car; he stood on the step holding onto the grab iron and was using his right foot to kiek the sandpipe into place, the sand was going onto the ground; there was a sand-pipe for the other rail, but if one side was off the other side is off in a corresponding manner, and by kicking the pipe on one side both would be put in place; he kicked the pipe two or three times, and it was going back into place; there was a sudden jerk in the motor, it caused him to lose his balance, and it threw his foot under the wheel, and the wheel ran over it; he had operated a motor for twenty-two months and was familiar with it; the control is a little bar that projects from the box and is operated as a street car is operated; you can advance it to give more power and pull it back for shutting off the power; these motors are in what they call series, there are nine points; you advance the control, and the electricity goes into the resistance grid and from the grid into the motor as it goes through the series; the first five points are in series, and he left it in series when he went down to kick the sand-pipe; the speed at that time was three or four miles per hour; if it is left in that position the motor will continue steady and will not jerk; giving it more power will make it jerk as it did when he was hurt, that is, it went forward suddenly, and it had been going steady before, it increased its speed suddenly and threw his foot under the wheel; that sudden movement would be caused by the application of more power; when he asked the brakeman to go out and look at the pipes the control was on series at point five, point six is one point past series.

He further testified that Clark, the conductor,, took his seat at the control when he went to kick the pipes, that Clark sat on the stool in his position; that Clark walked up and put his hand on the control and had his hand on it when plaintiff went out; that he could not see Clark’s hand when he kicked the pipe and when the motor moved suddenly forward, he could see his face, and he was still at the control in the same position as he was when plaintiff went out, and that Clark could see plaintiff’s position when he was kicking the pipe and knew what plaintiff was doing; he did not have a hammer with him when he was kicking the pipe, he couldn’t have reached it with a hammer; it was customary to do it with the foot, and it is the custom of all the employees; after plaintiff was hurt the conductor operated the motor.

Mr. Burehell, the brakeman, testified that plaintiff told him to go out and look at the sandpipes which he did, and the sand was running on the outside of the rail; that he told the plaintiff what he saw, and the plaintiff said he would have to fix it, and Mr. Clark,, the conductor, said to Mr. Swaner, “Don’t let him (the brakeman) fix it, you go fix it,” and said, “I will take the control.” That at that time Clark, Swaner, and the brakeman were the only ones in the motor. The brakeman further testified that when plaintiff went out Mr.

Clark sat down on the motorman’s seat and put his hand on the control, and that he, Burehell, followed • Swaner out; that while plaintiff was kicking the sandpipe there was a sudden movement forward of the train; that Swaner cried out immediately following the sudden movement, and he assisted Swaner onto the platform; that Mr. Clark was still on the motorman’s seat at the control; that Clark then stopped the motor, and they took plaintiff to Ogden, Mr. Clark operating the motor all the way in. Mr.

Clark as a witness for defendant testified that the train consisted of six loads and one empty; that when they got almost to Woods Siding there was a bunch of horses on the track, and they slowed down; that they started up the hill again, and Mr. Swaner said to the brakeman, “Go out and see if the sanders are working;” that the whole crew including the trolleyman was then inside the cab; that the brakeman went out, looked at the sanders, came back and told the plaintiff that the sand was running but was not hitting the rails; Mr. Swaner said, “Watch her, D.

S. (addressing Clark), and I will go down and kick that sandpipe over; maybe it is out of line,” and that he warned him not to do that; he said: “To hell with that sand-pipe, we will make it, all right. You will get your foot caught.” He thought Swaner said: “I will watch that, all right.” Anyway, Swaner went out, climbed down the left side of the motor to the front end, and that was the last Clark saw of him until he saw Burchell, the brakeman, help him up on the end of the motor; Clark then thought something was wrong and stopped the train.

When Swaner was going out Clark stepped up to the controller, but he testified he did not take hold of it, he did not sit down, he did not touch the controller at all until he shut off the power to stop the train; from the time Mr. Swaner left the cab until Clark shut the power off there was no sudden jerking or forward movement of the locomotive; after the plaintiff climbed down onto the step Clark could not see him; the wheels were not slipping at all, and there was no occasion for the sand to be used; Clark could not see anything to occasion Mr.

Swaner to inquire about the sander, so far as the movement of the train was concerned. Clark said he observed the position of the control switch handle at the time Mr.

Swaner left the cab, and it was in parallel position, that is, it was on point nine; that is the full maximum distance that the control can be thrown, and could not be moved forward to feed any more power into the motor; at that point there is a jamb that the controller handle goes up against, and it cannot be pushed any further; that he observed that the control was at point nine when he stopped the train, and he hadn’t touched it up until that time; that it was also at point nine when Swaner left it; that it was natural for him to make this observation and see the position the controller was in.

The trolleyman, who claims he was in the cab, testified there was no jerk or sudden movement of the train, that he was not in a position to know whether the conductor touched the control with his hand, and that he heard the conductor warn Swaner not to go out and attempt to kick the sandpipe. The defendant’s electrical and mechanical engineer and a shopman testified that immediately after Swaner was brought to Ogden they examined the sandpipes on this motor, that the pipes were in position and rigid and could not be moved even with a hammer.

There was evidence that one other train was in the same power circuit as was the train on which plaintiff was motorman at the time of the injury, and it was then just leaving Brigham; that if a circuit breaker should kick out at one station on account of heavy pull the power would be diminished and the speed slackened, and on replacement of the breaker there might be a sudden movement of the trains. But there was no proof that this occurred at the time Swaner was injured, or that the train leaving Brigham was a heavy load on the current. Let us return to the scene of the accident.

All seem to agree that a sudden movement of the control from point five on series, where plaintiff testified he left it, to point nine, where Clark testified it stood immediately after the accident, would have caused a jerk or sudden forward movement of the train; and the evidence shows that Clark was the only person in position to move the control from point five to point nine, and Clark knew plaintiff’s position and what he was doing at the time he was injured. There was testimony that Clark took the motorman’s seat at the control and put his hand on the lever.

We are of the opinion on the evidence there was an issue of fact for the jury as to whether Clark was guilty of the claimed negligence in moving the control from point five to point nine. If a jury should accept Swan-er’s evidence as to the position of the control when he went out, a finding that Clark moved it to point nine would seem to necessarily follow. If • Clark’s evidence on the point should be accepted as true, a contrary conclusion would follow.

If it be true, as claimed by defendant, that the evidence indicated that the claimed jerk might be attributed to a cause other than that alleged in the complaint, we see no reason why that point cannot be guarded by proper instructions to the jury,, on the principle that a jury cannot indulge in guessing the cause of the jerk, but must find that Clark’s negligent act was the proximate cause, before it could return a verdict for plaintiff. But the evidence for defendant in that respect raised a mere possibility and not probability. And so we order a reversal and a new trial.