Chesapeake & O. Ry. Co. v. Winder

• Decision Date: 10 January 1928
• Docket Number: No. 2658.,2658.
• Parties: CHESAPEAKE & O. RY. CO. v. WINDER.
• Court: U.S. Court of Appeals — Fourth Circuit

23 F.2d 794 (1928)

CHESAPEAKE & O. RY. CO. v. WINDER.

No. 2658.

Circuit Court of Appeals, Fourth Circuit.

January 10, 1928.

William Leigh Williams, of Norfolk, Va., for plaintiff in error.

D. Arthur Kelsey, of Norfolk, Va. (Kelsey & Jett, of Norfolk, Va., on the brief), for defendant in error.

Before WADDILL, PARKER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an action at law, brought in the District Court of the United States for the Eastern District of Virginia, by M. P. Winder, defendant in error, against Chesapeake & Ohio Railway Company, plaintiff in error, for personal injury. In the court below, the defendant in error was plaintiff, and plaintiff in error defendant, and they will be so designated here.

Plaintiff was employed by the defendant as a fireman on a car float operating between the terminals of defendant at Norfolk and Newport News, the crew of which car float ordinarily included two firemen. On the night of August 31, 1926, the car float upon which the plaintiff worked, arrived at Newport News about 7:30 p. m. in command of the captain of a tug which was towing the float. It was found that the piers or bridges ordinarily used for the tying up of the float were occupied, and an attempt was made to tie up the float at a pier ordinarily used for ocean-going vessels, known as pier No. 8. The deck of the float upon which plaintiff worked, was a very short distance above the water. The floor of pier No. 8 was much higher than the deck of the float. There was only one fireman on the car float. On arriving at pier No. 8, the captain in charge of the float directed plaintiff, whose duty it was to assist in mooring or tying up the car float, to climb up on dock No. 8, and make fast the line. In obeying the order, plaintiff was injured, and on trial the jury brought in a verdict in his favor for $7,500.

Three main points are raised here by the defendant: First, that there was no evidence of negligence sufficient to render defendant liable; second, that the plaintiff assumed the risk; third, that the verdict was excessive, or that in fixing the amount the jury did not take into consideration any evidence of contributory negligence on the part of the plaintiff himself.

On the first point, the evidence shows that defendant through its agents undertook to tie up the car float to a dock not built for that purpose. In the operation of its business in the harbor, at Norfolk, the defendant must certainly be charged with the responsibility of having proper facilities for operation. The float at the time of the injury complained of was not properly manned, as it is admitted that ordinarily two firemen worked on the float and assisted each other in the mooring. There was certainly enough evidence on these points to justify the case going to the jury.

On the second point, as to the assumption of the risk by the defendant, while it is true that the defense of the assumption of risk is not barred by the Federal Employers' Liability Act (45 USCA §§ 51-59; Comp. St. §§ 8657-8665) — Jacobs v. So. Ry. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970 — the burden of proving that plaintiff had assumed the risk is upon the defendant, and in order to justify a directed verdict for the defendant on that ground the evidence tending to show such assumption must be clear and uncontradicted. K. & M. Ry. Co. v. Kerse, 239 U. S. 576, 36 S. Ct. 174, 60 L. Ed. 448.

In this case the evidence was such that the judge below was clearly right in letting the case go to the jury on this question. In the case of C. & O. Ry. Co. v. Proffitt, 241 U. S. 462, 36 S. Ct. 620, 60 L. Ed. 1102, the court, in discussing a similar question to the one here, said: "But, if it was an unusual and extraordinary danger, plaintiff could not be held to have assumed it, in the absence of knowledge or notice on his part. To subject an employee, without warning, to unusual dangers not normally incident to the employment, is itself an act of...