30 F.2d 487 (6th Cir. 1929), 5088, Sherry v. Baltimore & O.R. Co.

Docket Nº:5088.
Citation:30 F.2d 487
Opinion Judge:HICKENLOOPER, Circuit Judge.
Party Name:SHERRY v. BALTIMORE & O.R. CO.
Attorney:John Ruffalo, of Youngstown, Ohio (Ruffalo & Wall, of Youngstown, Ohio, on the brief), for plaintiff in error. Union C. De Ford, of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for defendant in error.
Judge Panel:Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.
Case Date:February 07, 1929
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 487

30 F.2d 487 (6th Cir. 1929)

SHERRY

v.

BALTIMORE & O.R. CO.

No. 5088.

United States Court of Appeals, Sixth Circuit.

February 7, 1929

In Error to the District Court of the United States for the Northern District of Ohio; Paul Jones, Judge.

Action by John F. Sherry against the Baltimore & Ohio Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Page 488

John Ruffalo, of Youngstown, Ohio (Ruffalo & Wall, of Youngstown, Ohio, on the brief), for plaintiff in error.

Union C. De Ford, of Youngstown, Ohio (Harrington, De Ford, Huxley & Smith, of Youngstown, Ohio, on the brief), for defendant in error.

Before MOORMAN, HICKS, and HICKENLOOPER, Circuit Judges.

HICKENLOOPER, Circuit Judge.

Action under the Federal Safety Appliance Act (45 USCA §§ 1-46). Plaintiff was a car inspector employed by defendant in and about the railway yard of defendant in and about the railway yard of defendant in the city of Youngstown. It was his duty to inspect 'bad order' cars, to make such repairs as could be made on the ground, or to order a car to the repair shops for that purpose.

The car in question had been placed upon one of the ladder tracks in the general yard, cut from the train, and reported to plaintiff as having a defective brake. In his capacity as inspector and repairman, plaintiff went to the car, found that it had a badly bent brake staff, and, in order to determine whether the brake was operative notwithstanding this defect, mounted to the top of the car and attempted to apply the brake. Thereupon the brake staff broke, throwing him from the car and causing the injuries complained of. Upon trial a verdict was directed for the defendant, on the ground that the plaintiff (as an inspector and repairman) did not come within the provisions and the benefits of the Safety Appliance Act, and that the car was not in use or being hauled, so as to make such act applicable.

The Safety Appliance Act has been the subject of judicial consideration and construction so frequently during recent years that it is not deemed necessary to now exhaustively reconsider the established precedents. Some of those most pertinent to the present issue are state in the note. 1

The general rules deducible from these decisions may be briefly stated. The remedy is statutory, and liability, where the statute attaches, is absolute and independent of negligence. There must, of course, be a breach of one of the express provision of the act, and casual connection between this failure of defendant to comply with the requirements of the act and the injury to the plaintiff. Where the failure to comply with the requirements of the act is not a proximate cause of injury, but only a remote cause, or one creating an 'incidental condition or situation in which the accident, otherwise caused, results in such injury,' the employee cannot claim the protection of the act.

Thus the initial question for determination in every such case is whether it falls within the purview of the statute. Section 2 of the Act of April 14, 1910, c. 160, 36 St. 298, 45 U.S.C. § 11 (45 USCA § 11), provided that all cars must be equipped with 'efficient hand rakes.' Where any car shall have been so properly equipped, but such equipment shall have become defective while such car was being used by the carrier upon its line of railroad, section 4 of the act (45 U.S.C. § 13 (45 USCA § 13)) permits such

Page 489

car to be hauled to the nearest available point where repairs may be made without incurring...

To continue reading

FREE SIGN UP