State Ex Rel. Chenoweth v. Baltimore Contracting Co.

Offutt, J., delivered the opinion of the Court. The Pennsylvania Railroad Company leases from the Northern Central Railway Company a railroad coal yard at the foot of Clinton Street in Baltimore City, which it uses for the transfer of coal from its cars to ships tied up at a pier adjacent to the yard. The yard, known as No. 2, is equipped with; railroad tracks, switches, a tipple, an elevated railway over which small hopper cars carry coal from the tipple to the ships, and other equipment designed to facilitate the transfer. The whole yard is divided into a “gravity yard” and an “empty yard.” The tracks run generally east and west.

Loaded cars enter the yard from the west and are pushed into the “gravity yard” by a locomotive, and brought to a stop on a grade sloping west. Then they are released one by one and permitted to run by gravity west past the tipple, where they are switched on to a track running to the tipple, and there engage a device ⁵ known as a “dolly,” which pulls them east upon the tipple. There by certain clamps the cars are seized, overturned, and emptied into the hopper cars, which carry the coal west again to the loading ship. After the freight cars are unloaded they are allowed to run by gravity eastward into the “empty yard,” where they stand until a sufficient number accumulate to require their removal from the yard.

The tipple is an elevated structure higher than the surface of the yard and also higher than the elevated railway, so that all cars leaving it run east or west by gravity. There is one track running east from the tipple to the “empty yard” which, at a point known as the “clearing point,” branches off into other tracks in that yard. To avoid blocking the “empty yard” it is necessary to take empty cars beyond that point. In moving the empty cars to the “empty yard,” one car will be permitted to drift easily down a grade on the track leading to the “empty yard” to some point west of the “clearing point,” and held there by a mechanical brake, and as other cars are emptied they will be run behind the first car, until the operative decides that the “draft” is large enough to be run into the “empty yard.” The whole process of transferring the coal is done, not by the railroad company, but by the Baltimore Contracting Company, Inc., and for that purpose the entire yard is under its control and supervision.

But to insure the safe and adequate operation of its track, cars, and equipment, the railroad company at all times employs its own servants and agents, and charges them with the duty of seeing that its cars and equipment are' in safe and serviceable condition. On September 21st, 1937, it employed for that purpose two inspectors, Oliver D. Chenoweth and John E. Thompson, both of whom had been in the same employment there for many years. Their duties required them to inspect the cars, to make minor repairs, to discover defects and the absence of essential parts of the braking mechanism and other equipment of the cars, and their work naturally required them to be, at times, in, on, under, and between the cars. ⁶ On the morning of that day the body of Chenoweth was found crushed under the trucks of a standing car in the “empty yard.” There were no eyewitnesses of the accident, but, assuming that the position of his body permitted the inference that his death was caused by the negligence of the Baltimore Contracting Company, Inc., the surviving widow and children of Chenoweth brought this action against that corporation to recover compensation under the provisions of Code, art. 67. At the conclusion of the plaintiff’s case the court directed a verdict for the defendant, and from the judgment on that verdict this appeal was taken.

The record submits seventy exceptions, of which one relates to the granting of the defendant’s demurrer prayers, and the others to rulings on the admissibility of evidence. The nature of the case requires this court to value all the evidence to determine whether it is legally sufficient to support an inference that the accident which resulted in the death of Oliver D. Chenoweth was caused by the defendant’s negligence. In that inquiry, as of course, the truth of any and all evidence and all proper and legitimate inferences deducible therefrom tending to support plaintiff’s claim is conceded. That the purpose and significance of the evidence may be more readily understood, the conflicting theories of the parties as to their respective rights and liabilities will first be stated.

The appellant’s contention is that the position in which the decedent’s body was found permits the inference that the accident which caused his death resulted from some sudden, violent, and unexpected movement of the train of cars under which he was found, and on which he was at the time employed in the performance of his duties as a car inspector, that there was no warning of the movement, and that the decedent was under no duty to anticipate it, but that the defendant, knowing that the decedent might be at work on one of the cars of the train, was under a duty (a) to so operate the cars as to ⁷ avoid endangering him, or, (b) if the normal operation of the cars necessarily created a danger, to warn him thereof, and that his death was caused by a breach of that duty. The appellee contends (1) that no inference of negligence can be drawn from the mere fact that the decedent was killed by a car under its control, (2) that there is no legally sufficient evidence of any unusual or negligent operation of the car which caused the death, but that on the contrary the uncontradicted evidence shows that it was operated in the normal and accustomed manner with which the decedent had long been familiar, (3) that in the absence of certain protective warnings and signs which the decedent for his own protection was required by the rules of the railroad company and the custom of the defendant to give, it was under no duty to anticipate his possible presence on the train, and (4) was not therefore under any duty to warn him of a usual and customary movement which was an ordinary incident of the work but which might endanger him if in fact he was on the train. The evidence in the case is consistent with the following statement of fact: In the course of transferring the coal from the cars to a ship, the loaded cars are brought into the “gravity yard,” and left standing on a grade sloping towards the tipple. They are released one at a time, and permitted to run by gravity beyond and west of the tipple, they are then pulled eastward up a grade to the tipple, unloaded, and then allowed to drift eastward on a track sloping from the tipple down to the “empty yard.” In a given movement, the first empty car is stopped on that slope west of the clearing point and held there by a mechanical brake, until other cars accumulate behind it, held in position by the first car.

When the train or draft has a sufficient number of cars, a brakeman employed by the defendant releases the brake on the first car and permits the whole train to drift into the “empty yard,” which is level, and to stand there with the brakes re ⁸ leased. If there is not enough room between cars on the track in the “empty yard” and the “clearing point” to permit the latest draft to come to a stop, without blocking the clearing point, the brakeman on the latest draft uses it to bump into the standing train and push it farther along the track. He stands at times at the front of the first car, and at times at the rear, accordingly as the brake happens to be at one end or the other, but-in neither position would he be able to see persons standing beside cars on the track ahead of him or between them. As stated above, the track running east from the tipple to the “empty yard” branches at the “clearing point” into several tracks.

The south track is called Track No. 5, and near and north of it is another track called Track No. 4. It was Chenoweth’s duty to inspect the cars while they were loaded and standing in the “gravity yard” and also after they had been unloaded and standing in the “empty yard.” On the morning of September 21st, Track No. 5 was full, and there were four cars on Track No. 4, about eight car lengths from the “clearing point.” Chenoweth and Thompson having some work to do on those cars, were proceeding together towards the- “empty yard,” when they separated. Chenoweth left Thompson to put a key in a brake of one of those cars, and Thompson went to the machine shop for a drink of water. He saw nothing more of Chenoweth until his body was found about thirty minutes later.

After he left two drafts were added to the four standing cars, first one of two cars, and then one of seven. There was not space for the seven cars between the standing cars and the “clearing point,” and it was necessary for the brakeman managing that draft to bump or push the six cars farther along. There was no evidence that the brake which he operated was defective, that the movement was unusual, or that any greater force was used than was necessary to clear the track for the seven cars. Chenoweth’s body was found under the rear trucks of the third car from the east end of the train.

That par ⁹ ticular car was found to be derailed when the body was found. Thompson, referring to that fact, said: “The leading wheels of one of these cars was completely derailed, off of the track. It was the leading wheel on the east end of the car he was under. The front wheels of the car he was under were both off of the track.

The front pair of wheels of the front truck. Each truck consists of four wheels and the two front wheels of the forward truck were both off the rail. They had not been that way before. * * * I don’t know how far the front wheels of the front truck were off of the rails but it was right next to the rail. There was evidence there to show that those wheels that had come off the rails had run along the ground.

I don’t remember how far they had run along the ground, but I knew that the car ran along side of the rail along the ground, but I couldn’t tell you how far. I imagine pretty near a car length. The train of four cars had been pushed at least a car length, with the front wheels of the trucks of one of those cars altogether off the tracks.” Joseph Stepnowski, on September 21st, 1937, had been employed by the Baltimore Contracting Company, Inc., for nineteen years as the brakeman who took the empty cars from the tipple down the grade into the “empty yard,” and he was so employed at the time of the accident. Describing the movement of the two drafts of two and seven cars on to the No. 4 track, he said: “On the morning of September 21st, 1937, I first put two cars on Track 4 and then a little later the seven more.

When I put the two cars in, there were four cars there from the day before, two gondolas and two hoppers, and then I had put two hoppers in that morning. I don’t know what time it was I put the two hoppers down there. It was a right good while before I put the seven down, but I really don’t know how long. I had been working for some time on a different job before I put the two hoppers in.

Then after a little while I brought seven more down, but I don’t know how long that was; it was right long time. * * * “Q. When you ¹⁰ came riding down on the draft of seven cars, what did you want to do with them that morning, what were you trying to do? * * * A. When I dropped them seven cars down to make the coupling, I intended to move half a car length to clear, to make room, to clear the track. * * * “Q. Were the brakes all right? A. The brakes were all right. “Q. The brake that you were handling on that first car, could you put it on full, if you wanted to that morning, on that seven car draft, the brakes on the first car of the seven car draft, as you came down there with the seven; were you or not able to put that on full that morning? Tell his Honor. A. Yes, your Honor, I put that brake tight enough to hold on to that brake and hold that draft down so it come down about three miles an hour before I come to a stop.” And he further testified that he gave no warning because he saw nobody to warn.

The same witness also gave this testimony: “When we leave empty cars standing in the empty yard over night we do not put the brakes on to hold them still. No brakes are put on cars in the empty yard. We have been told not to leave the brakes on cars standing in the empty yards. That is the instructions I have from Mr. Walker, the foreman, when I started to work, not to leave brakes on in the empty yard.

Why, I don’t know. “Q. During the years that you worked for the Baltimore Contracting Company as a car rider, you saw, did you not, every day, at all hours of the day, car inspectors walking around, near and inspecting and making light repairs to empty cars standing on the tracks, did you not? * * * Q. Do you understand that question? A. Yes, I see car inspectors walking around them cars inspecting them, providing if the track is filled in and the switch is thrown the opposite way and a blue flag is there. “Q. You say that you only saw car inspectors walking up and down examining cars when blue flags were out? Is that what you say? * * * “Q. Do you tell the court that you only saw car inspectors walking up and down, examining cars, tapping them, ¹¹ looking at them, when blue flags were out? * * * A. I misunderstood the question, I misinterpreted this question. Yes, I see car inspectors walking on both side many a time, but when they had slight repairs to do they closed that switch on that draft and put the blue flag on that draft and notify me and also notify my foreman, Mr. Walker.

Q. You tell the court and jury that during the time you have worked there every time a car inspector wanted to make any slight repairs at all they first closed the switch, put a blue flag out, and notify you or your foreman? A. That’s right. Q. Every time? A. Every time.

Q. And that has been true the whole number of years you have worked there? A. As soon as the blue flag comes in effect, whenever the blue flag comes in effect. Q. In other words, there are some things that the car inspectors do there without putting up a blue flag are there not? * * * A. I don’t know.” Cross examined he testified: “I have been doing this king of work for about nineteen years and I took my orders from Mr. Alfred Walker, my boss. I did what he told me to do and only that.

He is the one who told me that when men were working on the cars the switch would be thrown and a blue flag up and I would be told and Mr. Walker also would be told. Q. And it was your understanding that when the switch was open on any track and no blue flag up and no notice had been given you or the tipple, that it was all right to carry cars down into the empty yard? A. That gave me the right of way. Q. And you have seen the blue flag up on one of these five tracks on numerous occasions, haven’t you?

A. Yes. Q. And have you seen the switch thrown at one or another of the tracks from time to time when the blue flag was up ? A. I see the blue flag was on and the switch was closed. I have been notified at the tipple by car inspectors not to carry cars down on certain sidings.

I respected those notifications and warning signals. I always have. Q. On this particular occasion did you see any blue flag on track No. 4? A. That morning?

Q. That morning, yes. A. No. Q. At that time that morn ¹² ing on No. 4 track? A. There wasn’t no blue flag on that track for the last two days since I was running cars, from Monday, and running on the following day, Tuesday. I did not see a blue flag on Track 4 any time on the morning of September 21st, and I did not see the switch thrown to close No. 4 Track that morning.

I did not receive any instructions from any one that morning not to run cars on No. 4 Track.” He also testified that the brake worked properly. On redirect examination he testified as follows: “You knew that when they did that, walked alongside of trains of standing cars, tapped them, looked at them, examined them, opened the doors on them, they did not put out blue flags to do that, did they? * * * Q. They didn’t put out blue flags when they were doing that, did they ? His Honor said you should answer. A. Yes, they did.

Q. Did they put out blue flags when they did that? A. When they inspected cars, they inspected filled track cars, not that track where I was running. Q. What? A. They inspect cars on fulled up tracks, not that track I was running on.

Q. You tell the court that they inspected cars only when the tracks were completely full. A. That’s right. Q. You tell his Honor that car inspectors working through the yards and inspecting cars only inspect the cars when the track was entirely filled with cars? A. That’s right.” Then followed a colloquy between counsel for the parties and the court which apparently left the witness so confused that he was either unable or unwilling to say whether he knew of any change in that practice or custom.

In respect to the rules referred to by Stepnowski, Thompson testified. “When we are making the repairs in or under cars, we place a blue flag on éach end of the track, and in addition to that we notify anyone such as in this particular case, such as the tipple operative so that they will know that we are working on that particular blue flag. In addition to that, while it is not required by the rules, we ¹³ throw the switch in opposition to that track, so in case he would happen to forget it, he could not come in against that blue flags and cars, rather. We notify the man who is riding the cars, and if we don’t see him, we notify the foreman, Mr. A1 Walker. It would be either Mr. Stepnowski or Mr. Walker that we would have notified on this particular morning.

The switch that he would throw would be the switch leading into No. 4 Track, if he is working on that track, so that anything coming down would go on the No. 5 Track. “(The Court) If you are going to work on a standing empty down on the level, you walk back to the tipple and up that incline and tell the operator you are going to operate, you are going to work on such and such a car, or do you send word back by the car rider? “(The Witness) If we don’t see the car rider we go and find him, and, if we can’t find him, we tell the foreman. We walk up there and tell him. The car rider is the main man to tell you would get. The blue flags are kept at a post that is in the ground.

They are kept near the gravity yard, right between the empty and gravity yard. * * * There were blue flags there on the morning of September 21st, 1937, available for such use. I know they were there of my own knowledge. When that blue flag is so placed on No. 4 Track it is visible from the tipple. It is visible from each point down here along which cars might be stopped preparatory to taking a draft down.

We use the blue flag to keep anyone from going in that track and either moving or bumping cars that are in there. The blue flag has been in use in that yard ever since I have been there. I have used it for a similar purpose throughout my railroad experience. It is a standard railroad practice.

When the blue flag was so used by me, the flag was respected, that is the car rider did not run his cars beyond the flag. After the accident I did not see any blue flag on No. 4 Track. I did look for it. Let me correct this answer a little bit, I didn’t purposely look for it, but I noticed there was none there as I passed by, because I had to go in that direction to go ¹⁴ to the telephone.

Later that afternoon when I inspected the cars I did not see any blue flag there or any remnant of a blue flag. * * * The blue flag itself was fourteen inches wide, by nine and three-quarters high, and the shaft of it measures four feet one inch. I imagine it weighs about ten or twelve pounds and is made of wrought iron or steel.” Chenoweth and Thompson as car inspectors knew of these rules, and each of them had been given a copy of them. The rules were the operating rules of the Pennsylvania Railroad Company. At the time of the accident no blue flag was displayed, nor was any warning of any kind given, so far as the record shows, to any one of the decedent’s presence in, about or near the car under which he was found.

James Leo Behr, defendants’ foreman, said that in twenty years he had never seen repairs made to a car unless the blue flag was up, although he had seen workmen walking around standing cars, but the witness Thompson also testified that it was not customary to put out a blue flag merely to put “a shoe pin in a car.” The specific rules referred to by these witnesses contain among others these directions: “Rule 26. ‘Train Signals. A blue signal displayed at one or both ends of an engine, car, or train, indicates that workmen are under or about it; when thus protected it must not be coupled to or moved. Each class of workmen will display the blue signals and the same workmen are alone authorized to remove them. Other equipment must not be placed on the same track so as to intercept the view of the blue signals, without first notifying the workmen. “ ‘When emergency repair work is to be done under or about cars in a train and a blue signal is not available, the engineman and fireman will be notified and protection must be given those engaged in making the repairs.’ * * * ‘The Car Inspector, in the absence of a foreman, will perform the same duties as the foreman in the district assigned him.

When inspecting or re ¹⁵ pairing cars he must protect himself by displaying the signals as prescribed by Rule 26’.” The shoe key is an iron pin bent at one end which secures the brake beam to the brake shoe; it is not fastened and may drop or fall out of place if the car is upset, as in unloading. It is about fifteen inches from the side of the car and may be replaced by an operative standing beside the car but not under it. Turning now to the exceptions, it is apparent that appellants attempted to prove certain important elements of their case by employees of the defendant and the railroad company. Because they were so employed, although called and sworn by them, appellants contend that they had the right to impeach these witnesses by cross-examining them as to other statements made at other places at other times in conflict with their statements in this case, and by proof of such contradicting statements.

That contention was rejected by the trial court and his rulings in respect to it are the subject of a group of eleven exceptions. The rule in this state, applicable to such cases, is that a party will not be allowed to impeach his own witness by proof of contradictory statements made on other occasions, nor will he be permitted to cross examine such