
    East Tenn., Va. & Ga. Railway Co. v. Butler.
    August 12, 1895.
    Action for damages. Before Judge Turnbull. City court of Eloyd county. September term, 1894.
    Butler sued tbe railway company, and obtained a verdict for $1,100. Defendant moved for a new trial on tbe grounds that tbe verdict was contrary to law and evidence, and tbe motion was overruled. Tbe evidence was conflicting. Plaintiff testified, in brief: February 13, 1892, be was employed as a brakeman or car-coupler in tbe yard of defendant, and was instructed to make up a train in tbe yard. A train of freight-cars bad just got into tbe yard, there being twenty-five or thirty cars. It was between 12 and 2 o’clock at night. He went to tbe southern end of tbe train and attempted to make a coupling. He attempted to couple a moving car attached to an engine, to a stationary car that bad just run in. He went to tbe stationary car and set tbe pin, and gave signal to tbe engineer to come back. He bad a lantern in one band, and bis coupling-stick with him. He then stepped between tbe rails to set tbe pin, placing bis right band upon it. Tbe approaching train was then twenty or thirty feet away. Just as be did so, an engine at tbe other end of tbe cars jolted against tbe line of standing- cars, causing them to run back on him. He was in a position where be could not escape, and knew nothing about tbe engine striking tbe train at tbe other end until it bad bit. He grasped the pin firmly and moved back with tbe train. If be had attempted to get out from between tbe track, be would have been knocked down and killed. When tbe two cars came together, the pin was driven in such, manner as to catch, his hand between the pin and the deadwood, cutting off the two middle fingers about the end joint. • The engine he was coupling for came up, and he signalled it to stop. It is the duty of the coupler to set the pin, after which it is his duty to couple them together. He goes in and sets the pin, and the car coming back sometimes knocks the pin down and sometimes it does not. He has a stick to hold the link up; there is no way to hold the pin up. He had not set the pin before he motioned the engine back. It is owing to circumstances whether it is safest to set the pin and then walk out. He does not know that that was the safest way to do this work. If he had set the pin and then walked out, he expects he would have been injured. If he had the pin out, he would have had to be in the train to make the coupling any way. He does not know whether it would have been necessary to have touched the pin in setting it or not. Very often it is necessary to put your hand on the pin afta it is set ready to be knocked down; very often also it is unnecessary. He had read the rules, but did not have a copy then. In making a coupling you set the pin and lean it. If you have time you let it go. In this case he did not have time. The pin was in the draw-head. He could have stopped the engine that was coming back twenty feet away from him. He had plenty of time to get in and set the pin if the standing cars had not come back on him. He supposes, if he had not held the pin, he would have fallen down and the cars would have run over him. He could not (?) have set the pin and got out, if the engine had not struck the cars. He could not get out afterwards; it was too hard a lick. Hendricks was standing twenty feet to his right. It was his intention, when he went in, to make the coupling; but when he went in to set the pin, the engine struck the cars, and he could not turn the pin loose. The usual custom among couplers was just owing to circumstances. Sometimes they stepped inside, and sometimes would lean over. The only easy way — all that he would have done — would be to step in and set it. If he had been leaning over, of course it would have been more dangerous, because he could not have held and would have fallen across the track. He heard the engineer to whom he had signalled say that the lick was a hell of a lick.
   Lumpkin, J.

There was evidence to warrant the jury in finding that the defendant was negligent, and that the plaintiff was not. This being so, and there being no dispute as to the fact that he was injured, this court will not overrule the discretion of the trial judge in refusing to set aside the verdict rendered in the plaintiff’s favor. Judgment affirmed.

Defendant introduced three of its rules in force at the time of the injury: (1) Great care must be used in coupling cars. Coupling apparatus cannot be uniform in size and strength, and is liable to be broken and from various causes to render it dangerous to expose the hands and arms of couplers; and all employees are enjoined, before coupling cars, to examine so as to know the kind and condition of the coupling apparatus; and are prohibited from placing in trains any car with defective coupling, until they have first reported the defect to the yardmaster or conductor. Sufficient time is allowed and may 'be taken by employees. Use coupling-stick in all cases, and make the examination required. Coupling by hand is strictly prohibited. Sticks must be used to guide the link or shackle, and each employee expected to couple cars is required to provide himself with a stick for that purpose. (2) In all cases of doubt or uncertainty, take the safe course and run no risks. (3) The use of intoxicating liquors'will be a sufficient reason for dismissal.

Defendant introduced also the testimony of half a dozen witnesses, in brief, as follows: The engineer obeyed the signals given by Butler and Hendricks. His engine was backing about one mile an hour when hit. Just before he was hit the stop signal had been given. He reversed his engine to stop as quickly as he could; and as he stopped, the cars ran up, struck him and knocked him about a car-length. That was a moderate lick for that position. The grade was down hill, descending toward the south. He was moving north with his engine. The slack coming out of all the cars he had, would give eight or ten feet of slack. If the train had stopped suddenly, the engine would have rolled back eight or ten feet. He had twelve or fourteen cars. H he had the brakes off the engine, the cars would roll back. The blow was very moderate for that place. It was a usual blow. The safest place for the coupler to occupy in setting a pin is on the outside of the rail, just to catch hold of the end of the car and set the pin and make the coupling. If he was in that position, he could avoid injury by jerking himself back. He should have his hand on the end of the car, standing on the outside, reach over to the draw-head and still hold to the outer edge of the car. If he were standing in that position and a train should be going south, and the stationary car to which he Was making the coupling should be struck, he would be thrown back from the track. Is in a dangerous position when he lifts the link to make the coupling. The proper Way is to stand outside the track when he- lifts the link with an iron stick made for that purpose. At that time it was usual, when a train came into the yard, for one engine to take hold of one end of the train and the other engine to take hold of the other end. As a general thing, both engines take hold of the same train. It was the usual method of doing the work, and occurred every few nights. The engineer did not know where the other engine was at the time; was not looking for it; had not seen it; it was twenty to twenty-five car-lengths from his engine. Does not know why the other train was run up against this one. It is a pretty common occurrence, when one train is starting to couple to a car, for another to come up and back against it. It is a safe way to make a coupling at uight, when a man has a lantern in his hand, to catch hold of the end of the car with one hand and set the pin with the other. In the condition of things as they were, it was likely that the engine would be at work at both ends of the train. It was the duty of the coupler to look out for them. He should look out for engines at both ends. He is supposed to-know, having to work there every day; it would be impossible for him not to know it. It is not necessary for the firemen to let the couplers know that two engines are working on the train. There is no reason why he should not-see them, etc. The general rule for setting a pin is for the coupler to stand outside of the rail with one one hand on the car, reach over and set the pin in a slanting position, and when the engine backs up, the lick causes the pin to drop. Cars are from seven to ten feet wide. A man can rest his hand on the side of the car and set the pin with no difficulty whatever. If he sets the pin in the right way, and guides the link into the draw-head with the coupling-stick, he could not possibly be injured. No good man will walk in and take hold of the link when the car is standing and has been stopped. There is a doubt that something might move the car. It is not allowed on the railroad to go between the cars and make the coupling; no first-class man will go between the cars. Men have been discharged on that account. One witness saw Butler take a drink of whiskey that night, and throw the bottle away. The engineer did say it was a hard lick, but that it was a common thing. They all are hard licks. It was not harder than is usual in making up trains, etc.

MoCutchen & Shumate and Hoskmson & Harris, for plaintiff in error.

Wrights & Harper and Dean & Dean, contra.  