Toops v. Atchison, Topeka & Santa Fe Railway Co.

Burch, J.

(dissenting): The action was based on the federal employers’ liability act. The case is governed by federal law. The *202judgment must stand up, if at all, under the decisions and the method of review of the supreme court of the United States. The opinion of this court makes no reference to decisions of the federal supreme court touching any phase of the case except the subject of assumption of risk, which I do not regard as important. If I read the federal decisions correctly, th§ judgment of the district court should be reversed.

The jury found defendant was negligent in not protecting the rear end of the fifteen grain cars. The opinion of the court approves the finding because neither brakeman nor white light was on the west end of the grain cars, and conductor Toops had a right under the rules to believe and rely on the fact that one of his brakemen would ride the kicked-in grain cars, the brakeman taking a position on the west end of the first car, where his light could be distinctly seen. The rules supposedly creating this duty were rules 24 and 102.

Conductor Toops knew perfectly well that no brakeman with a light would be on the end grain car to show him the string of grain cars was coming, because he planned the work so his brakemen would of necessity be otherwise employed, and in planning the work he was the company.

The first work done was to get five loaded grain cars from the elevator track and put them into the train. Toops made the air coupling! The train was then made up, but there was switching to do. Toops and his two brakemen went over the switch list. The instructions were to get fifteen empty grain cars, which were behind twelve stock cars, off the passing track, and place the grain cars at the elevators for loading. The head brakeman went east with the engine to open and close switches and make the engine couplings. The rear brakeman stayed behind to make the coupling of cars back at the road crossing. This done, engine, stock cars and grain cars all went eastward, and both brakemen went with them. The grain cars were to be kicked in on the elevator track, the stock cars were to be replaced on the passing track, and the engine was then to be attached to the east end of the string of grain cars in order to push them to the elevators. The head brakeman’s duties did not contemplate that he should leave the engine standing idle, get on the rear grain car, ride it back to show Toops the string of grain cars was coming, and then walk back, to throw the switches so the stock cars could be replaced, and after that the engine could be attached to the grain cars. The rear brakeman was obliged to* take care of the stock cars after they were kicked back on the *203passing track, and he could not get on the rear grain car and ride it back to show Toops the string of grain cars was coming, without holding up the work. Toops had but two brakemen. The train was to be put over the road that night, and it would have been the essence of nonsense for Toops to take either brakeman from his proper employment and assign to him the duty of riding the rear car of the string of grain cars, lantern in hand, back to where Toops was waiting for them, just to show Toops they were coming. That practical application of the rules required no such absurdity was disclosed by the following testimony for plaintiff:

“And while Mr. McHenry was bringing the engine through the stock track, I was standing at the crossing on the north side of the main line, talking to Mr. Toops; he was on the south side of the main line, and he asked me if these fifteen cars were all in one cut, and I told him they were, and that I would kick them into the elevator track. He said, ‘All right, I will look out for them.’ ”

Toops knew perfectly well that neither of his brakemen carried two lanterns, one to work with and the other to be put on the rear end of the string of cars to show Toops they were coming. Of course there was no need of a light to protect the public crossing west of the station, because Toops was on guard looking out for the cars some 300 feet east of the station.

It was not Toops’ duty merely to assist in the switching operations. Rule 396 required him to attend personally to the switching, since he had no unloaded way freight to check. He' was in full charge of the switching operations, not theoretically, as a matter of rule, but as a matter of fact. One of plaintiff’s witnesses testified:

“If be tells me to do something as a brakeman, it is my duty to do it; and if he tells Hemphill to do something, it is Hemphill’s duty to do that; and if he tells the engineer to do something, it is the engineer’s duty to do it. The conductor has entire charge of the switching operations, and the others simply work under him.”

The result is, protection of the rear end of the fifteen grain cars goes out of the case as a basis of recovery, because the company was not negligent toward Toops in that regard.

The second ground of negligence found by the jury was failure of the engineer to give a signal when starting to back the cars. What was the purpose of such a signal? Manifestly, the purpose was to apprise a person who might not anticipate a backward movement of the train that such a movement was about to begin, and would result in sending cars in oh the elevator track.

At the time the signal should have been given the end of the *204string of grain cars was east of the junction of the elevator track with the main track, the stock cars were east of the grain cars, and the engine was at the east end of the string of stock cars. The curve and the embankment intervened between the end car of the string of grain cars and the place Toops chose to meet it. A. sounded signal would be far away. Time would elapse before the end car would reach Toops and, signal or no signal, he would necessarily be obliged to be on the lookout for approach of the expected cars. So rule 483 applied to Toops. That rule required him to be vigilant and cautious, and not trust alone to signal or rule of safety. He had sent the engine and brakeman eastward for the express purpose of kicking the grain cars upon the elevator track. They were certain to arrive after sufficient time to complete the preliminary operations and then perform the kicking operation. There was in fact delay. The engineer gave the cars a kick, and stopped. The slack ran out, and it was discovered the grain cars were not detached. New signals were given, a second kick was made, and the grain cars were cut off. In anticipation of their approach, Toops went to a proper place to meet them. When the end car approached him it was moving slowly, because inertia very soon brought it to rest, and the presumption is Toops was vigilant and cautious, and watched carefully for 'approach of the very cars he went to the switch track to meet.

The jury found that Toops had a good lantern, but the jury found he could not see the cars with it (finding No. 7). The two brakemen had no difficulty in finding cars and switch stands and safely making couplings with their lanterns, one of which was like the one Toops carried. Toops said he would look out for the grain cars. As indicated, he knew there would be no brakeman with a lantern and no white light to show him the end car of the fifteen grain cars. Signal or no signal, he had to find the grain cars with his lantern. He knew and the jury knew he was equipped to do so, and the seventh finding of the jury would be ludicrous if the subject to which it relates were not so serious. The court’s opinion properly indulges the presumption that when Toops arrived at the switch track he looked for the approaching grain cars, but the court’s hypothesis that he did not see the end of the grain car which immediately struck him is quite as unsupported by evidence as the jury’s finding.

Under federal law the employer must not only be negligent, but the proof must show that the negligence caused the injury. (St. L. & *205Iron Mtn. Ry. v. McWhirter, 229 U. S. 265, 281; C. M. & St. P. Ry. v. Coogan, 271 U. S. 472, 478.) In this instance there is no evidence-that failure of the engineer to give a signal before he kicked the grain cars upon the elevator track had anything to do with the accident.

The third element of defendant’s negligence found by the jury-was the poor condition of the track. A photograph of the track taken the day after the accident is in the record. The question: fairly arises whether the jury was competent to declare defendant, negligent in providing the kind of track disclosed by the photograph and the testimony, and whether Toops did not assume the risk of using skeletonized elevator tracks at small stations on the Dodge City-Elkhart branch line; but waiving this matter, there was no evidence the condition of the track had anything to do with Toops’ death.

Nolan said he was slow about making the cut for the first kick, because of the condition of the track — bad footing. The conclusion that Toops was killed because of bad track is on a par with the reasoning of a witness for plaintiff. The witness opined the accident might have been caused, not by lack of ballast, nor by weeds, nor by skeletonized track, but because of a spike not fully driven down. The witness testified:

' "He could have caught his foot on a spike. There is a spike sticking in. there just close to where he laid on the inside of the rail. ... I didn’t see anything to indicate that he fell on a spike, but he was there, and the spike was there.”

All the proof there is in the record that the condition of the track caused the accident is that the track was bad and the man was found dead upon it. To conclude the condition of the track caused the-accident involves a spurious use of the res ipsa loquitur doctrine instead of speculation, in determining cause, a method specifically condemned by the supreme court of the United States in an opinion published April 15, 1929. (Louisville & Nashville Railroad Co. v. Chatters, 49 Sup. Ct. Rep. 329.)

The court’s explanation of the accident is as speculative as it is schematic. It is assumed without evidence that Toops did not reach the place of the accident until just as the rear grain car-arrived. Under this assumption Toops would have run into the side of the string of grain cars but for the failure of the first kick of the engine to send them in on the elevator track. To the first assump*206tion is added another, having no basis in the evidence, namely, that Toops stepped on the track in front of the moving end car, which he looked for and could not see, on his watchful way to the south side of the elevator track. Then follow assumption after assumption, until the fanciful account of the accident is complete. The end of the first car struck Toops; his agility was handicapped by the skeletonized track, his feet were trapped, and he was knocked down; he threw his lantern and pencil to a place beside the track, with his right hand; he dropped his train book, which he held in his left hand, between the rails; then with his hands free, he was helpless, and suffered fatal mutilation. Attorneys for plaintiff go so far as to give us the workings of his mind while facing his doom. They say he threw his lantern to the side of the track for an emergency signal, which nobody could see, and the court does not relinquish the view that Toops actually threw his lantern into the weeds beside the track.

It will be recalled that Toops’ hat was found beside the track with the lantern and pencil. Did he throw his hat there as he did the lantern and pencil? If so, with which hand? Or did the hat fall there, and if it did, why may not the lantern and pencil have fallen there?

The lantern was from three to four feet south of the south rail of the track. The hat was nearer the rail, and the pencil still nearer. Conceive of a yardstick poked under the overhang of a large-size grain car, with one end against the rail. The other end of it would be in the midst of the articles mentioned, and it is just as reasonable to assume that the articles fell at the side of the car as that they were thrown from a place on the track at the end of the car by a man suddenly knocked down.

The court says that if Toops had been on the car and had fallen down, his train book would have been in his pocket. One easy guess is that maybe the train book was in a pocket when the terrible encounter commenced which ended with the headless body jammed against the derail.

The court says that if Toops had attempted to climb on the moving cars and had fallen, he would naturally have fallen outside the rails. I am not familiar with the law of nature which would prevent him from falling partly outside the rails and partly between the rails.

At some time Toops left the station platform, where he was last .seen, and went'to the switch track, where he was killed. He was *207in the midst of unfamiliar surroundings. The night was very dark, and after traveling about 100 yards, he was to approach the elevator track for the first time in thirteen years. Just why he should carry his pencil in his lantern hand, and his trainbook with thirty-four or thirty-five bills in it in his left hand, to meet a cut of kiclc-in cars which he was to take care of, has never been explained. Book and pencil in separate hands could not help him find the way, or find the cars on the switch track, or be of use to him when he reached the switch track, or be of use to him when he began to do what was necessary to take care of the cars. The articles might be a hindrance to him in doing his work, something which an experienced and prudent man would guard against. A commonsense view would be that when he was ready to go he stuck his pencil under his hat the way conductors do, put his billbook in his pocket, took his lantern in the hand he used by force of habit, and proceeded to the place where he had planned to be. Anyway, there would have been nothing fantastical about this kind of conduct, and if he did conduct himself in that manner, it requires no more invention to explain what followed than appears in the court’s opinion.

To render the court’s theory of the accident tenable, it is indispensable that Toops should have been struck by the west end of the west grain car, knocked down and then killed. The theory has been that he was killed practically as soon as he was knocked down. Some physical facts rationally considered refute the theory. Plaintiff’s witnesses testified there was no blood on any of the four south wheels of the west car, and that there was blood on the south wheels of all other grain cars. In plaintiff’s brief it is said that, “blood was found on all of the cars except the first car on the west end of the string of fifteen cars.”

The jury’s evasive answer to the third interrogatory discloses the candor which it displayed in disposing of the case. A witness who examined the car wheels both the night of the accident and the next morning testified there was flesh as well as blood on the wheels, and nobody corrected or contradicted him. His testimony is important, and follows:

“We examined the trucks of the freight cars that night, and then made another examination the next morning. We found no marks of blood on the first car. The first marks of blood we found on them were on the west end, west wheel, on the south side of the second car. Following these care up to the engine, we found blood on every wheel, blood and flesh on every wheel up to the tender, up to and including the tender.
*208“I crawled under the cars the next day, just under the first two. I made this examination at the request of Mr. Shull, the claim agent of the Santa Fe, and Doc Ellis. It was made in the morning. Doctor Ellis was the doctor that was called before we moved the body, before anybody would touch it. The doctor requested that we look the ground over thoroughly, because we would all be called, and that we would more than likely be called on the coroner’s jury.”

To prevent the jury from drawing from the physical facts the natural and inevitable inference that Toops was killed by the first wheel of the second grain car, plaintiff produced a physician who gave the following testimony:

“In a crushing injury where a railroad car wheel or railroad engine mashes off a member, it mashes up the tissues so bad, including the blood vessels, that there isn’t any bleeding immediately following it, like there would be if it was cut off with a sharp instrument.”

When Toops was killed the grain cars were moAung so slowly they stopped within a short distance. The head brakeman testified as follows:

“To the best of my judgment, the west end of those fifteen cars was about three or four car lengths west of the derail.”

This testimony must be true, because the evidence was uncontradicted that the east car of the string of grain cars stopped within two or three car lengths of the elevator track switch, and the sketch, drawn to scale, submitted as illustrative of the station grounds, indicates the string would not be long enough to reach five car lengths beyond the derail.

It is a matter of common knowledge that the head is supplied with blood by large arteries ascending on each side of the neck, that the blood is returned by large veins, and that arteries and veins have branches and ramifications supplying the various tissues. Toops’ head was severed, and his right arm was mangled and severed. To do this it was necessary that the car wheel pass through arterial and venous blood. The physician would make of a car wheel and a steel rail such deft instruments that crushed major arteries and veins in crushed tissues would be sealed up so that no blood could escape — immediately. The doctor’s testimony did not cover the subject of crushed tissue adhering to the wheel that crushed it. We have then this operation: The first car wheel does its dexterous work. The car moves on five or six feet — whatever the distance between the wheels of the front truck. The second wheel of the front truck comes through clean because the blood cannot start to *209flow. The car rolls slowly on some twenty-five feet — or whatever the distance between the trucks of a forty-foot grain car. The first wheel of the rear truck passes over the place of severance. Still no bleeding. The car moves on, and 'the last wheel of the car comes in contact with no blood. The car rolls on for the distance between the rear wheel of the front car and the front wheel of the second car. Then is the time for bleeding to commence and flesh to adhere, and they do so.

In cases of this character the supreme court of the United States examines the record, determines for itself what is substantial and what is unsubstantial testimony, and does not permit a jury question to be raised by unsubstantial testimony. (Gulf, etc., R. R. v. Wells, 275 U. S. 455.) I fear the supreme court of the United States would not regard the physician’s testimony as making a substantial contribution to the solution of the case.

Since the theory that the first car killed Toops forces the facts, the court falls back on the second car. Toops comes down to the switch track, and fortuitously steps on the track just as the west end of the first car reaches the exact locality. The west end of the first car strikes him, and he makes distribution in space of lantern, pencil, hat and train book. He is knocked down, but all the first car does is to push him maybe two or three feet, possibly roll him some. The second ear then comes along and kills him. Besides nullifying the court’s approval of the doctor’s testimony regarding postponed exudation of blood, this will be a great surprise to plaintiff’s attorneys.

The petition alleged that Toops was struck by the kicked-in cars, was knocked to the ground between the rails at a point three or four feet [two or three feet] east of the derail, and his body dragged until his shoulders rested against the derail. The petition then stated:

"That his head and right arm had fallen in such manner .that they lay across the south rail of the elevator track and were severed from his body by the wheels of the rear car of said kicked-in cars; . . .”

The brief for plaintiff contains the following, printed in italics: “The petition contains our theory of the case, and the evidence amply sustains our theory.”

The brief does depart a little from the petition. The petition states that Toops was knocked down, that his body was dragged, but that his head and arm had “fallen” so they were severed. The brief says:

*210“His head fell over the south rail, as did his arm. We are not clear as to whether the front wheels severed his head and arm, or whether it was the rear wheels of the first car.”

There was evidence the body was dragged westward a little way, and that the severed arm lay about three feet west of the severed head. There is not even a scintilla of evidence that the first car did the dragging. Finding the court’s conjecture respecting a vital matter at odds with the conjecture upon which plaintiff commenced, tried and won the case, I am. content to close with' the observation that the decisions of the supreme court of the United States forbidding a jury to speculate on cause of accident are so numerous citation of them is superfluous.