Carpenter v. Baltimore & OR Co.

• Decision Date: 08 February 1940
• Docket Number: No. 8029.,8029.
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: CARPENTER v. BALTIMORE & O. R. CO.

109 F.2d 375 (1940)

CARPENTER v. BALTIMORE & O. R. CO.

No. 8029.

Circuit Court of Appeals, Sixth Circuit.

February 8, 1940.

Frank Carpenter, of Norwalk, Ohio (Carpenter & Freeman, of Norwalk, Ohio, on the brief), for appellant.

J. S. Rhinefort, of Toledo, Ohio (Tyler, Wilson & Rhinefort, of Toledo, Ohio, on the brief), for appellee.

Before HICKS, ALLEN, and HAMILTON, Circuit Judges.

HAMILTON, Circuit Judge.

This is an appeal from a jury verdict for appellee in a personal injury case.

In the Court of Common Pleas, Huron County, Ohio, appellant, Compton L. Carpenter, an employee of appellee, The Baltimore & Ohio Railroad Company, instituted this action against it for personal injuries received on January 21, 1935. In his petition he alleged that appellee was a railroad corporation engaged in transportation as a common carrier through several states of the United States and that it owned and operated several railroad lines, one of which passed through the village of Willard in Huron County, Ohio. Nearby appellee maintained extensive yards, a round-house and other facilities for the loading and unloading of freight and the assembling of cars into trains for transportation.

He further alleged that he was a laborer at the storehouse of appellee and on January 21, 1935, was helping to move from the yards by a locomotive crane and loading into a box car from a platform between the crane and the car, frogs, switch points and guard rails and while so doing, a counterweight on the crane fell and injured him.

Appellant amended his petition by striking therefrom the allegation that both he and appellee were engaged in interstate commerce and that the acts of negligence of which he complained occurred in violation of duties imposed upon appellee by the Federal Employers' Liability Act, 45 U.S. C.A. § 51 et seq.

Appellee later removed the action to the United States District Court on the ground of diversity of citizenship and in its answer admitted that it was engaged in interstate commerce but denied the remaining allegations of appellant's petition. It plead no affirmative defenses.

In the course of the trial appellee orally waived the issue that appellant was not engaged in interstate commerce at the time of his alleged injury and the evidence clearly establishes that he was. Kelley v. Norfolk & W. Ry. Co., 6 Cir., 19 F.2d 808; Pedersen v. Delaware, Lackawanna & Western R. R. Co., 229 U.S. 146, 153, 33 S. Ct. 648, 57 L.Ed. 1125, Ann.Cas.1914C, 153.

The case was tried in the lower court on the theory that the effect of the Employers' Liability Act upon the rights of the parties was not involved because appellant had withdrawn from his petition an express reference to the Act and that the issue between the parties was to be determined by the local law of Ohio. We do not accept this premise. The appellant alleged, and in proof clearly established, that his injury, if any, was suffered in the course of the operation of interstate commerce. This made it wholly unnecessary for him to invoke the provision of the Employers' Liability Act in express terms (Grand Trunk Western R. Co. v. Lindsay, 233 U.S. 42, 48, 34 S.Ct. 581, 58 L.Ed. 838, Ann.Cas.1914C, 168), and the case is controlled by the applicable provisions of that Act.

Appellant complains of the general instructions on contributory negligence and assumed risk and also the following specific instruction: "You are instructed that the defendant cannot be held liable in this case merely because the lead weight or ball fell and by reason thereof injured the plaintiff."

He also complains of the admission of evidence of his receipt of relief payments from appellee after his alleged injuries.

The evidence shows that appellant had been an employee of appellee for more than twelve years and at the time of the accident was a member of one of its crews loading rail braces, plates, switch points, guard rails, frogs, etc., into a box car standing on a siding adjacent to a platform at Willard. The material was moved from the yards by a locomotive crane operated by steam power and traveling on the railroad trackage to the side of the platform opposite the box car, dropped onto manually operated trucks, hauled across the platform and put in the box car and immediately transported for use on appellee's Pennsylvania and Illinois divisions.

At the time of the accident appellant was moving one of the trucks and Charles Osborn, who had operated the crane for three years, was operating it. The crane cab rotated on its bed with a boom or arm forty-five feet long attached, the crane being so constructed that its boom or arm could be changed and moved to any position to pick up material and hold or release it. The crane was equipped with a lead ball or counterweight, cylindrical in form, weighing approximately 600 pounds, the function of which was to balance the cable in such way that the pulley might be moved from one position to another with the least possible effort. This weight was held in position by means of a cable and controlled by an applied foot brake and was used to bring the cable down in its operation. It was attached to a hook below a pulley, which in turn was on a cable from 75 to 80 feet long, one end of the cable being fastened to the end of the boom, which comes through the pulley and back through the sheave pulley and down the boom to the drum inside the crane where it winds and unwinds. The ball, or counterweight, could be let down by merely releasing the brake while the boom was stationary. The weight was raised or lowered by winding or unwinding the cable around the drum. It was attached to a three-quarters inch cable which fit into an inch and quarter iron hook, six inches deep with a four inch throat. Release of the brake would let down the cable, hooks, chains and weight.

One of appellant's duties consisted of hooking the chains around the material that was to be moved by the crane. Immediately before the accident he had assisted in putting the chains on a frog which was being loaded into the car. Charles Osborn lowered the chains from the crane and after they were fastened on the frog raised it from the pile of other material and swung the boom around toward the platform. While the crane was traveling in this direction, appellant followed it to assist in removing the chains which was also one of his duties. The frog, weighing from 1,200 to 1,300 pounds, was then placed on a two-handled truck on the platform and appellant and his fellow workers wheeled it into the box car and loaded it for shipment. After the chains were taken off the frog, the boom remained in the same position. It had rained and frozen and there was a good deal of ice. After the frog was placed in the car, appellant ran the truck back under the boom. At this time the ball or counterweight, which had no load and was suspended in the air about fifteen feet above the platform, suddenly fell injuring appellant's left leg and hip.

Immediately after the accident, the crane and all of its attachments were examined and tested by the employees of appellee who testified they were without discoverable defects and operated perfectly. No witness testified that either the counterweight or any part of the crane was defective or inoperative in any way at the time of the accident.

Appellant's objection to the instruction is predicated upon the premise that the legal rule of res ipsa loquitur is applicable. This rule does not relieve him of the burden of showing negligence nor does it give rise to any presumption in his favor. It is a rule of evidence which permits or requires the inference of negligence where an accident occurs under circumstances which, in the ordinary course of human experience, would not happen but for the negligence of defendant and is but an evidential inference for the consideration of the jury under proper instructions. Glowacki v. Ry. & P. Co., 116 Ohio St. 451, 157 N.E. 21, 53 A.L.R. 1486.

There is substantial evidence in the record that the fall of the weight was caused by...