Baltimore & Ohio Railroad Company v. Mackey

This suit was instituted by Franklin H. Mackey, administrator of the estate of Robert A. Brown, deceased, against the Baltimore & Potomac Railroad Company and John Cassels. Plaintiff obt ined judgment, and defendants sued out a writ of error.

There was evidence before the jury tending to show the following facts:

For about five years prior to his death, Robert A. Brown, the intestate of the defendant in error, was in the employment of the Baltimore & Potomac Railroad Company as a car inspector. In the evening of March 17, 1887,-the night being dark, and, in the language of a witness, a 'fearful' one, 'snowing and the wind blowing very hard,'-he was on duty in what is called the 'Jersey Avenue Freight Yard,' in company with his uncle, who was also a car inspector. A fast freight train came in from Baltimore, and upon examination he discovered a defective drawhead (called by railroad men a 'bull nose') on one of the cars. The cars were all coupled together, and it was therefore impossible to repair the defective drawhead without the assistance of yardmen. Brown thereupon requested the yardmen to 'cut' the train, so that the defective drawhead could be reached and repaired. He and his uncle asked the conductor, Phillips, who had control of the shifting engine, to have that done; saying to him that if he would give them from five to seven minutes they would repair the car, and that, if not repaired, it would be pulled to pieces. Thereupon the conductor ordered a brakeman, with the yard engine, 'to cut the train, and give them a chance to fix it.' As soon as the train was cut, Brown and his uncle went to work on the defective car, which was the fifth one from the tender. The cut was between the fourth and fifth car. The deceased took the drawhead out and repaired it. Just as his uncle was about to drop the key in, which holds it together, he felt the cars 'going away from him.' He immediately came out from under the car, and Robert A. Brown was 'crushed in between the cars.'

When the train of cars was cut, those attached to the engine were pulled forward, leaving a gap in the train. Notice was not given of any purpose after cutting the train to detach the engine from the four cars it pulled away, in order that Brown and his uncle might reach and repair the drawhead. The two cars next to the one to be repaired were heavily loaded with coal. The grade from South Capitol street to New Jersey avenue was quite steep. While deceased was engaged in the work of repairing,-his back being towards the engine that had been used to draw some of the cars away, so that the inspectors could do their work,-the engine was detached from the cars attached to it, and sent off on other duty. The result was that the cars that had been attached to the engine came back down the grade towards the defective car, and against Brown and the car he was repairing. An effort was made to stop them by the use of a brake on one of the cars,-a 'foreign' car,-but the brake was insufficient for that purpose, and was itself out of order and defective.

There was evidence tending to show that car inspectors were not expected or required to repair foreign cars. A car inspector testified: 'There are cars that come into our yards which are out of repair, and there are cars that come in there from other companies. Our company don't hold us responsible for fixing those cars, because we don't get paid for it. We are instructed not to use our materials unless it was for a broken drawhead, and then we would have to put in another drawhead. Sometimes we do work, and card it to go to other companies. There are a great many cars come in that way, marked 'Defective Brake,"

This witness also testified upon the question of the defective brake as follows: 'He was a car inspector in the employ of the Baltimore & Potomac Railroad Company; that Robert A. Brown, the deceased, was the chief car inspector in the Jersey yard; that he was acquainted with a man named Downs, who was supposed to be the chief car inspector; that on the next day after the accident, or on the evening of the next day after the accident, the witness went, in company with Mr. Downs, to examine this car with the defective brake; that he was not positive wheth r it was on the day after the accident, or the second day after the accident, that they went to examine the said car with the defective brake; that he went with Downs to assist him to find the car; that they found it, and made an examination of the brake, and that the result of the examination was that they found the brake was a defective one; that the car was marked 'Defective Brake' on the end of the car; that the witness got up on top of the car, and tried both the top and end brake; that he first put the brake down, and then came down and examined it, and found that the bottom connection was too short, and that 'if it had been a long connection, or connected all along, it would have been a pretty sufficient brake'; that this car was brought up from the Jersey yard during the night, or in the morning, along with a draft of eighteen or twenty or twenty-five other cars; that he did not know whether this car with the defective brake was hauled by another engine or was shifted backwards and forwards after the time of the accident or not; that the car was still loaded with oil; that chalk marks 'Defective Brake' were on the car when it got into the Maryland avenue yard; that he did not know how the car got there; that he went with Mr. Downs to examine this car at about half-past six or seven o'clock in the evening; that he examined the car with the defective drawhead shortly after the accident; that he saw the tools lying around there which were used for the purpose of fixing cars, and that he examined the drawhead and saw what it needed; that he told the men to look out for him, and he got under the car and did the work; that it took him about three minutes.' On cross-examination, he further said 'that he did not know that the brake which he examined was the brake on the car connected with the accident, except that he was told that that car was the cause of the accident; that he did not know it as a fact; that Robert A. Brown was his superior officer-our leader'-or foreman in the yard; that he (witness) first discovered the chalk mark 'Defective Brake' when he went to examine the car; that it was marked on the end of the car, and on both sides.'

After the train was cut, and space left between the cars that were pulled away and the defective car, Brown had no reason to believe that the former would be allowed to run back upon him. On the contrary, when the train was cut he had the assurance of the conductor that the cars pulled ahead would be left standing where they were after the cutting of the train had been accomplished.

The conductor, a witness for the defendant company, gave this account of the affair: 'He was in the employ of the defendant the Baltimore & Potomac Railroad Company, as a conductor in the freight yard in this city; had been so employed by the defendant in this freight yard for about twelve years; was there at the time of accident, running with the shifting engine No. 327; that on the night of the 17th of March. 1887, the night of the accident, he was engaged in the 'Jersey Yard' in shifting cars; that they got down to the Jersey yard about 9:55 o'clock in the evening, and took down with them about twenty-five cars, which they first shifted around where they belonged; that it took them about half an hour to dispose of those cars; that they went over onto the other side of the yard to shift the fast freight which was coming in from the north; that said train was brought in by engine No. 307, and placed on No. 1 track; that said fast freight train arrived after they got down to the Jersey yard about ten or fifteen minutes; that they went to work upon said train to get out such cars as were to go south on the fast freight; that there were not over six cars in the said freight train to go south; that the cars which were for Washington were put over on another track; that then Robert A. Brown, the deceased, told them that they had a broken bull nose down there which he wanted to fix; that he asked the witness to pull the cars apart, and witness told him that he would go down there and pull them apart that he went down there, and pulled the cars apart; that witness told deceased he was not going to shift any more of those cars; that said cars were pulled apart to a distance of about forty feet; that Brakeman Hillary pulled the pin and uncoupled the cars in the first instance, and that the witness ordered the cars to be cut loose; that at that time he was talking to Robert A. Brown, who was standing right where the cut was made; that after the pin was pulled the witness (Phillips) gave the signal to pull ahead, and then went up towards the engine; that he stopped the engine when Robert A. Brown, the deceased, said, 'That will do,' by giving the engineer the shut-off signal with his lamp by swinging it; that thereupon the engineer (Smith) called to him, and he went up towards the engine; that the engineer then said he had no more water to do any shifting with, and I told him I hadn't anything to do, and they were not going to do any more shifting on that train, and I asked him to take a load of stock from the lower end up to the warehouse, and stop at Sixth street and get water. He said, 'Well, I will try it.' So I said to Brakeman Teiling, when I stopped talking to the engineer, 'How is it?' He said, 'All O. K.' I said, 'Go up and set this brake.' He got up and put it on. I told Mr. Brown, after I pulled the cars apart, that I was going to leave them standing there.'

There was evidence tending to show that a full crew, with a shifting engine, in a yard, is six men,-an engineer, a fireman, a conductor, and three brakemen,-and that on the night Brown was killed there were only two brakemen on the train. There was also evidence bearing upon the question whether the deceased was guilty of contributory negligence in not displaying a blue light while repairing the defective drawhead, in conformity, as the defendant claimed, with one of the printed rules of the company.

Enoch Totten, for plaintiffs in error.

[Argument of Counsel from pages 78-82 intentionally omitted]

Franklin H. Mackey, for defendant in error.

Mr. Justice HARLAN, after stating the facts in the foregoing language, delivered the opinion of the court.