NEGLIGENCE.

[Lucas Circuit Court,

January 12, 1901.]

Haynes, Parker and Hull, JJ.

#### Samuel Hunt, Rec., v. Frank H. Caldwell.

1. Ruee as to Brakes Upon Freight Cars.

Ordinary care requires a railway company to see that the brakes on freight', cars, its own or those received from other roads, are strong and substantial, but the mere fact that an eye-bolt, the part of a brake going through the shaft, with a nut on one end to hold it and on the other end an eye to-to which the chain is attached, is a fraction or half an inch longer than the eye-bolts in a majority of brakes, does not of itself constitute negligence or make the machinery defective or dangerous.

2. Where Accident not Necessaries' Resuet oe Negeigence Aeeeged.

Where it appears, in an action against a railroad company for injuries to a brakeman, that the accident complained of might just as well or probably have been caused in some way other than that claimed, and which would relieve the railroad company from the charge of negligence, as where an accident claimed to have been the result of the use of a brake with too long an eye-bolt might just as probably have resulted from the winding of a. chain upon itself, a jury is not warranted in finding that the accident was caused in the manner alleged.

3. Witness Heed to be Unworthy oe Credit.

An employe of a railroad company, who claimed to have discovered the cause (a defective brake,) of an injury to a fellow brakeman immediately after the accident, and who remained silent during an investigation by the company and for fifteen months afterward, and then (being no longer in the employ of the railway company) appeared as a witness for plaintiff in an action against the company, and it also appeared that when his testimony was about to be taken he sought an interview with officers of the railroad company, in a somewhat peculiar manner, and wanted to know if they wished to see him before he testified,- and whose positive testimony as to the; location of a certain car in a train is contradicted by records made when there could be no inducement to make them false, held to be unworthy of credit.

4. Verdict Not Sustained by Evidence.

Where a verdict for plaintiff in such action was based wholly upon the testimony of the witness referred to and upon the assumption that the accident happened in a certain way, when in fact it might reasonably have happened in a way relieving the company of liablility, such verdict should be set aside-as not sustained by the evidence.

6. In Absence oe Actionabee Negeigenge Court Shoued Direct Verdict.

There being no evidence of actionable negligence on the part of the railroad1 company, the court should have directed a verdict for the defendant.

*Brown &*Geddes, ior plaintiff in error.

*Hurd, Brumback & Thatcher,*for defendant in error.

*563Heard ' on Error.

Huíl, J.

This action is brought by Hunt, receiver» of the Clover-Deaf railroad, so-called, to reverse a judgment of the court of common pleas. Frank H. Caldwell, the plaintiff below, defendant-in-error here, was a brakeman in the employ of the Clover Deaf road on and prior to October 14, 1896. On. that day he was injured by falling from the top of a car, where he was engaged in the performance of his duties. For the injuries then sustained he brought suit, claiming negligence on the part of the company in the construction of a brake. The case was tried once in the common pleas and a verdict returned in favor of the plaintiff for something over $3,000. A motion for a new trial was allowed, on the ground that the verdict was not sustained by sufficient evidence. The case was tried again and a verdict returned in favor of the plaintiff for $4,000. After the latter trial a motion for a new trial was overruled and judgment entered against the railroad company ; to which judgment, error is prosecuted in this court.

The negligence complained of is, that certain parts of the brake were improperly constructed and in a defective condition at the time of the accident and that this caused the injury that the plaintiff below suffered. The things particularly complained of were, that the brake-chain was somewhat too long and that the eye-bolt which holds the chain and to which the chain is fastened was too large and too long and that, on that account, the brake was defective and 'that the chain wrapped around the eye-bolt and slipped off while the brake was being operated by Caldwell and that he was in that way jerked and thrown off the car.

The accident happened at the city of Marion, Indiana, about daylight on the morning of October 14, 1896. Caldwell was the head-brakeman on the train, and as they were passing through the city of Marion it was noticed that he did not open a gate, which it was his duty to open, and, on investigation being made, it was found that he had disappeared from the train. Search was made and he could not be found, after which the train proceeded eastward without him, and he was after-wards found lying near the track in a street of Marion, in an unconscious condition, he having been injured about the head by his fall from the train. The conductor of the train went over the train after they left Marion, and a witness by the name of Danner, who was also' a brakeman on the train, testified that at the town of Vanburen, about ten miles from Marion, he looked over the train. The lantern of Caldwell was found on the fifth car from the locomotive and it was supposed that he fell from that car.

There were no reasons discovered at the time of the accident, that is no reasons made known, accounting for the accident, for his falling off the train. Mr. Danner, the witness to whom I have referred, was at that time in the employ of. the company, but some three days after that he was discharged from the service of the railroad company. He testified that he looked over the car on the morning of the accident and he claims that he found heel-marks or scratches on the the top of the fifth car, indicating that Caldwell had slipped on that car. He also claims that he discovered at that time that the eye-bolt was too long and the chain somewhat too long. He said nothing to the conductor or to the engineer, or to any other person,'about these things, if he discovered *564them as he claims to have done. He, himself, claims only that he *did*say, that he could tell, or knew, what was the cause of Caldwell falling off the train. This is denied by the engineer and the conductor, to whom he claims he stated it and he does not claim that he stated to any person upon this train what he says he discovered at that time, nor, so far as the record discloses, did he say anything at all about it to any one until about the time this action was commenced, which was some fifteen • months after Caldwell’s injury.

Caldwell’s injuries, as it appears from the record of course were not fatal and he afterwards recovered so as to be about, but he claims to have sustained serious injuries.

Danner’s deposition was taken and he testifies that at Vanburen, Indiana, shortly after Caldwell disappeared — after it was found that he had fallen from the train — he went back over the train and that the fifth car from the engine was a double-decked stock car, that being the car upon which it was said that Caldwell’s lantern was found and he says that he examined the brake and turned it and the chain appeared to be somewhat longer than they usually were, and he says further that the eye-bolt was larger and longer than they usually were; he testifies that it was larger than was necessary and longer than was necessary. Upon that being ruled out and he being pressed, upon cross-examination, he stated that he did not measure the length of the eye-bolt, but he should .think it was four anda half inches long, and he says that he tried the brake and when, he turned it the chain would wrap around the eye-bolt and after he had given it a few turns the chain would be thrown off from the eye-bolt and that would jerk him off the brake, and the claim of the plaintiff below was that it was in this way he was jerked off the train.

The chief ground of complaint here is, that the verdict is not sustained, by sufficient evidence, is contrary to law, and, further, that there is no evidence in the record to show negligence on the part of the railroad company, or to show if there was any defect in this brake, that Caldwell’s injury was caused by such defect.

Caldwell himself, does not testify to any defect in the brake of this car. No witness testified upon this subject except Mr. Danner. Caldwell testifies that he was turning the brake on the car from which he fell, which appears to have been the fifth one from the engine, and he says : “ The last I remember doing on the car is that I gave the brake a turn or two of the wheel to take the slack out of the chain, then I applied my strength to the wheel to turn it tight as much as I could,, and when it became tight, as it required all the strength I had, something gave way and gave me a terrible jerk and I fell off the side of the car. That is the last I remember anything about it.”

So that, as appears, he had no knowledge of the cause of this jerk which he says threw him off the car. Danner testifies that the dog was in the ratchet and the brake set on this car when he went back there.

Danner was asked whether he examined the eye-bolt, and he says “ I‘did aftér I found out how the brake acted.”

> “ Q. .How long was this eye-bolt ? ” “ A. I didn’t measure.”

> “ Q. Well, about ? ” “ A. Well, sir, I should judge that the entire bolt was about — oh, four inches and half.”

> “ Q. How long are eye-bolts usually on other cars ? ” “ A. Well, it is not necessary for them to be over three inches.”

*565We think the record shows that this eye-bolt must have been at least three inches and a half long to perform the service for which it was intended.

Then he was asked this: “ I am not asking what is necessary*, I am asking you how long they usually are ? ” “A. I never measured them.”

*“ Q.*Then you never measured any other eye-bolts ? ” “A. No, sir.”

“ *Q.*And you don’t know from actual examination how long the usual eye-bolts on cars are, do you?” “A. Well, I know from experience they are not all the same length.”

‘‘ *Q.*That is, some are longer and some shorter ? ” “A. Yes, sir, for I have put them in quite a number of times and I know some are not quite long enough to go through the stem and catch the nut and others are a little bit longer than necessary and some the eye is larger than on others.”

In regard to the brake chain, he is asked: “ You say the brake-chain, was loose?” “A. Yes, sir. * * *

*“*Q. Brake-chains on cars are frequently a little loose, aren’t they? ‘‘A. Yes, in some they are looser than on others.”

“ Q. Isn’t it a fact that there is not a car on the road on which the brake-chain pulls on the brake as soon as you start turning the wheel? ” “A. No. sir.”

“ Q. Isn’t it a fact that there is some slack, a certain amount of slack now, in every brake in every car?” “A. Yes, sir, there is some.” * * *

*“ Q.*Then you don’t know how they hung on this car?” *“A.*No, sir, I don’t know how they hung on this car.”

“ *Q.*This was not a Clover Lear car ? ” “A. No, sir.”

And he was asked this question : “ Now, haven’t you as a fact, Mr. Danner, often seen cars on which the chain was so loose that it would wrap upon itself for one wind and then fall over ? ” And he says he has seen that frequently. *“ A.*Yes, sir, I have seen it wrap two winds and fall over.

“ Q. How often have you seen that ? ” “A. Oh, a number of times.”

Danner testifies that this car was a Nickel Plate car — the one he examined — that it was the fifth car from the locomotive. The records of the railroad company which they kept, setting down when cars were put into a train and their order in the train show that the Nickel Plate car at the time of the accident was the second car from the locomotive, it having been put into the train after leaving Frankfort, and the weight of all the testimony is that the Nickel Plate car was not the fifth car, but that the fifth car a Union Pacific car and that the Nickel Plate car at the time of the accident, was the second car from the locomotive. No witness testified that it was the fifth car except Danner ; but he might be mistaken as to the order in which this car was in the train, it is argued, although his testimony was based entirely upon the fact that this car which he examined was a Nickel Plate car; he was questioned very fully and swears positively that it was the fifth car from the locomotive.

The claim of negligence against the railroad company, and of the cause of Caldwell’s injury so far as any evidence of the transaction itself is concerned, rests entirely upon the testimony of Danner and the plaintiff, and without Danner’s testimony it is clear there is no negligence *566shown against the railroad company, causing or contributing to the injury to Caldwell.

A large number of witnesses were called on this question of brakes and the way they are, and should be made, and it appears from their testimony that these eye-bolts were of various lengths upon cars, that they were often as long as four inches, or four and a half, and in some instances longer. The eye-bolt is simply a bolt going through the shaft of the brake, with a nut on one end to hold it, and at the other end an eye to which the chain was attached; the chain, in this case, being a half-inch chain, and this eye-bolt held the chain so that it could be wrapped around the shaft of the brake to stop the car. It was necessary, of course, that these eye-bolts should be strong, substantial, the whole apparatus of the brake : the shaft, the chain, the eye-bolt and key-bolt below the eye-bolt, all must be strong, substantial and of good size, and if they were not, that in itself would be negligence on the part of the railroad company, in not supplying machinery and apparatus of sufficient strength. This Nickel Plate car was not a car manufactured by the Clover Leaf road, nor a car owned by them, but a car which had come on to the road from another railroad, nineteen days prior to the accident. At that time it was inspected and it was inspected from time to time when necessary thereafter; there is no evidence that it was not carefully and properly inspected and no evidence that the inspectors were not proper and careful men.

The jury having returned a verdict for the plaintiff in this case and they being the judges of the facts, the verdict can not and should not be disturbed in this court unless it is clearly and manifestly against the weight of the evidence, or unless there is no evidence tending to show negligence on the part of the railroad company.

After careful examination of this record, we are of opinion that it does not show negligence on the part of the railroad company — that there is no evidence in the record tending to show want of ordinary care on the part of the railroad company with reference to this car or this brake. It was made in the proper way, that is, it had the shaft chain, eye-bolt, key-bolt, dog and all the other things that were necessary and proper for a brake. No complaint is made as to the plan or method of construction. It was made of good material and strong enough, and all that. Now that being a heavy, substantial piece of machinery, as this was, if this eye-bolt was a fraction of an inch longer than the eye-bolts in perhaps a majority of brakes -were, or some other brakes were, we do not think that would constitute want of ordinary care on the part of the railroad company in taking this car upon its tracks and permitting its men to use and operate the car. '

Holding, as we do, that there is no evidence here to show negligence against the railroad company, we, of course, hold that the verdict is against the weight of the evidence, as we think it clearly is.

The testimony of Mr. Danner does not commend itself very favorably to the court, he having, as he claims, noticed this defect on the night of this accident, when all were looking for the cause of this man’s injury, when a fellow trainman had fallen off and sustained a serious injury, he claims that he at that time ^discovered this defect, that he experimented with the brake and learned the cause of this man’s injury, and yet said nothing to any one about it, keeping it an entire secret, although as he claims, at the time he discovered this, he carefully set down in a book the number and description of the car and the defect *567which he discovered. It does not seem to us that the conduct of Danner was, that of an honest and a truthful man. He says it was not his duty to make a report, but it 'was his duty at the time when investigation was made to disclose to the conductor anything that he might have learned which would throw light upon this subject. But he said nothing. His conduct on that occasion and afterwards, impeaches his testimony as a witness. When his deposition was finally about to be taken, the record shows that he sought an interview with the officers of the railroad company in a manner somewhat peculiar just before he gave his testimony, and wanted to know whether they wished to see him before he testified.

So far as this Nickel Plate car being the fifth car from the engine is concerned, all of the other testimony is against that of Mr. Danner. The records of the company which were put down by the men as the •car passed through their hands, when there was no interest to make a false record, all show that this Nickel Plate car was the second one from the engine, and not the fifth.

Now, we are of the opinion, that if this eye-bolt was a little larger than many other eye-bolts, a fraction of an inch, or perhaps a half an inch, which would be a quarter ot an inch on each side of the shaft, that, considering the nature of the apparatus and the machinery and the work it was to do and its character, and all that, we think that it would not constitute negligence on the part of the railroad company to take such a car as that upon its tracks and permit its men to use it. If the eye-bolt was too small, it would have been too weak, and that would be a delect.

And, furthermore, it does not appear from this record that Mr. Caldwell’s injuries were due to any defect in this eye-bolt. According to the undisputed testimony, a brake-chain is liable at any time to wind upon itself, as they call it, and pull up on itself and then slip off and thus •cause such a jerk as occurred in this case. And the dog is liable to slip out of the ratchet and cause such a jerk; but if this was in place when Danner examined the car, as he claims it was, that was not the cause here. The chain is, of course, liable to wrap around any eye-bolt whether it is four inches or four and a half inches long ; it is a thing that is common to all brakes of this kind, but there must be some way of fastening the chain, which is a necessary part of a brake. There is no. claim made here that the eye-bolt was not necessary or that the plan of construction of this brake was not a proper one, and the fact that the bolt may have been a fraction of an inch longer than some others, would not, in our judgment, constitute negligence on the part of the railroad company.

Even if this were true, if this were longer than it ought to have been, even if that constituted a defect, still before Caldwell would be entitled to recover against the Clover Leaf railroad company it would be necessary for him to prove by evidence that the injury was caused by this defect. All that Caldwell knows about it is, that when he was setting this brake there was this sudden jerk and he was thrown off. But this chain may have wound or piled upon itself and been thrown off and ■Caldwell jerked and thrown the same as he would have been if the chain was wrapped around the eye-bolt; no one can tell from the evidence which it was that caused this brake to jerk ; and as the Supreme Court has recently said of negligence, this must be proved, it cannot be guessed! .at.

*568As was said by the court in its charge to the jury in this case, if it might just as probably have been caused in some other way than that claimed, then the jury would not be warranted in finding that this was the cause of the injury. And in our judgment it is not shown that any defect caused the injury. So that, laying aside those things which it seems to us impeach the testimony of Mr. Danner and render him a witness unworthy of belief and giving his testimony full consideration, we are of the opinion that there is no evidence in this record showing negligence or want of ordinary care on the part of the railroad company ; and, more than that, if there was any defect, the evidence does not show that Mr. Caldwell’s injury was caused thereby.

For these reasons the court of common pleas erred in overruling the motion to direct a verdict for the defendant, at the close of plaintiff’s testimony, and this motion should have been allowed when it was again renewed at the close of the case.

The judgment of the court of common pleas will therefore be reversed and the cause remanded for a new trial.