New York, C. & St. LR Co. v. McDougall

• Decision Date: 06 November 1926
• Docket Number: No. 4628.,4628.
• Citation: 15 F.2d 283
• Parties: NEW YORK, C. & ST. L. R. CO. v. McDOUGALL.
• Court: U.S. Court of Appeals — Sixth Circuit

15 F.2d 283 (1926)

NEW YORK, C. & ST. L. R. CO. v. McDOUGALL.

No. 4628.

Circuit Court of Appeals, Sixth Circuit.

November 6, 1926.

J. P. Wood and W. T. Kinder, both of Cleveland, Ohio (Tolles, Hogsett, Ginn & Morley, of Cleveland, Ohio, on the brief), for plaintiff in error.

Edward Davidson, of Cleveland, Ohio, for defendant in error.

Before DENISON, DONAHUE, and MOORMAN, Circuit Judges.

DENISON, Circuit Judge.

Action under Employers' Liability Act (Comp. St. §§ 8657-8665). In June, 1925, McDougall, who had been a railroad brakeman for 14 consecutive years, had been so employed by the defendant for 15 months. This service had been on and about its various tracks and yards in the city of Cleveland. On the afternoon of that day he was head brakeman on a train going out to a west side yard. Sitting on the rear end of a box car top, he was looking back, watching for a signal from the conductor. Receiving it, he stood up to transmit it to the engineer. Just as he rose to full height and turned around, his head was struck by the West Thirty-Eighth street overhead footbridge. For the resulting injury he brought this action and recovered.

The bridge, though built by the railroad, had been erected pursuant to grade separation laws and city ordinances, and was maintained by the city as part of its highway system. Its mere existence, with its 18-foot clearance, did not constitute negligence; a failure to warn him is the only material negligence charged.

It is not now important that McDougall may have been guilty of contributory negligence, operating to reduce his recovery. The case affords an illustration of what may be assumption of risk, without any contributory negligence, or in addition to it. There is clear opportunity for the attendant circumstances so far to reduce the applicable standard of due care on the employee's part that the law will not charge him with contributory negligence, and yet may say that the danger was a risk he assumed. See distinctions discussed in McMyler v. Mehnke (C. C. A. 6) 209 F. 5, 126 C. C. A. 147. Hence the defense of assumption of risk is the one now controlling. If established, it is fatal to the action. Seaboard Air Line v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. To establish the defense, it is essential that the employee should know and appreciate the danger, or be bound to do so. The trial below, therefore, turned about the question of a due warning of the plaintiff by the defendant covering this danger.

In December, 1924, McDougall signed a receipt for a time-table, saying in his receipt: "I acknowledge hereby that my attention has been especially called to and that I have knowledge of the information in the time-table hereby recited, which relates to overhead clearances." In this time-table, under the general heading "Special Instructions" and the subtitle "Overhead and Side Obstructions," it is stated that there are less than 21 feet from the top of the rail to the bottom of the obstruction in various places, including "Cleveland — all overhead structures between Euclid Avenue station and the N. Y. C. bridge west of Detroit avenue."¹ The three paragraphs then following call for special care by trainmen in all cases of scanty clearance.

Two objections are made to the sufficiency of this time-table as being the necessary warning. The first is that a clearance of 18½ feet would have been enough to make it safe for this man, standing on this car, and hence that the 21-foot warning was not applicable. We cannot read it so narrowly. Its purport is that a clearance of less than 21 feet may sometimes...