Maher v. Chicago, M. & St. P. Ry. Co.

• Decision Date: 29 December 1921
• Docket Number: 3009.
• Citation: 278 F. 431
• Parties: MAHER v. CHICAGO, M. & ST. P. RY. CO.
• Court: U.S. Court of Appeals — Seventh Circuit

278 F. 431

MAHER v. CHICAGO, M. & ST. P. RY. CO.

No. 3009.

United States Court of Appeals, Seventh Circuit.

December 29, 1921

James C. McShane, of Chicago, Ill., for plaintiff in error.

Carl S Jefferson, of Chicago, Ill., for defendant in error.

Before BAKER, ALSCHULER, and EVANS, Circuit Judges.

BAKER Circuit Judge.

At the conclusion of plaintiff's evidence, defendant having introduced none, the court directed the jury to return a verdict for defendant, and this writ of error challenges the resulting judgment.

Relationship of parties was that of consignee and common carrier by railroad. Plaintiff had been accustomed for some time to ship ice into Chicago on defendant's railroad in carload lots. Defendant would place the car on one of its sidings; and plaintiff would place in front of the door in the side of the car a platform, of a height to come slightly below the level of the car floor, so that ice could be transferred from the car to the platform and thence to the wagons of plaintiff's customers.

I. Variance. Plaintiff alleged:

'The defendant delivered to the plaintiff a carload of ice, and in so delivering it placed the car in which it was contained on the said track, at the said platform, for the purpose of having the ice removed therefrom by the plaintiff on the said platform; that in order that the said car might be unloaded with an ordinary degree of safety by the plaintiff, it was necessary that the said car should be in an ordinary safe condition for the plaintiff to unload and by reason of the premises it then and there became and was the duty of the defendant, in delivering the said carload of ice as aforesaid, to exercise ordinary care to furnish a car which was in a reasonably safe condition for the plaintiff to unload; yet the defendant, not mindful of its duty in this regard, and with utter disregard of the safety of the plaintiff in unloading the said car carelessly and negligently used and furnished a car which was in a dangerous condition for the plaintiff to unload, in that the appliances by which the door of the said car which was on the side of the said car which was nearest to the said platform, was attached to the said car and held in its position on the said car, were so loose and otherwise out of repair, and in such defective condition, that the said door was likely to fall upon and injure the plaintiff, when he was unloading the said car; and while the plaintiff with all due care and diligence for his own safety was unloading the said car, and in so doing was standing on the said platform, the said door, as the direct and proximate result of the said dangerous condition, became partially detached from the said car, and struck against the plaintiff and knocked him from the said platform on which he, the plaintiff, was then and there standing, and he, the plaintiff, was then and thereby knocked from the said platform to and upon the ground there, and thereby he was then and there greatly injured.'

Proofs show that the car arrived on August 11th; that on the 12th plaintiff removed ice for several customers; that between deliveries to customers he closed the car door; that he noticed certain defects in the door (as stated in the next paragraph hereof); that in continuing the process the next morning, the door, while he was endeavoring to close it, came off of the rail on which it was hung, and injured him. The first point of variance is that the averment is that he was injured 'when he was unloading said car' and the proof is that he was injured during an attempt to close the car door. But according to the proven custom of these parties, the unloading was not a continuous process, and the opening and closing of the car door was a proper incident or part of the unloading. The other point is that the door did not fall as the direct and immediate result of its own defects, but because of plaintiff's muscular exertion in attempting to close it. But a door is intended to be used; and allegations with respect to a defective door (or any defective appliance or machine designed for human use) should not be construed to exclude a proper use thereof by the injured party. At all events the question of variance was not made in the trial court and plaintiff was not given an opportunity to amend as he might possibly have desired to do if the point had been raised.

II. Defendant's Negligence. It was defendant's duty to deliver a car that was in a reasonably safe condition to be used for the purpose intended. Rld. Co. v. Freppon, 134 Ky. 650, 121 S.W. 454; Corbett...