Norfolk & W. Ry. Co. v. Hall

• Decision Date: 25 April 1931
• Docket Number: No. 3030.,3030.
• Citation: 49 F.2d 692
• Parties: NORFOLK & W. RY. CO. et al. v. HALL.
• Court: U.S. Court of Appeals — Fourth Circuit

49 F.2d 692 (1931)

NORFOLK & W. RY. CO. et al. v. HALL.

No. 3030.

Circuit Court of Appeals, Fourth Circuit.

April 25, 1931.

A. W. Reynolds, of Princeton, W. Va., and Joseph M. Sanders, of Bluefield, W. Va. (Bernard McClaugherty and Sanders, Crockett, Fox & Sanders, all of Bluefield, W. Va., and Albert W. Reynolds, Jr., of Princeton, W. Va., on the brief), for appellants.

A. J. Lubliner and John Kee, both of Bluefield, W. Va., for appellee.

Before PARKER and NORTHCOTT, Circuit Judges, and SOPER, District Judge.

SOPER, District Judge.

George W. Hall brought an action at law in the circuit court of Mercer county, W. Va., against the Norfolk & Western Railway Company, a corporation, and American Railway Express Company, a corporation, for personal injuries received by him on board a mail car of the railway company in the state of Virginia on December 14, 1927. The suit was removed from the state court to the District Court of the United States for the Southern District of West Virginia. The plaintiff was an employee of the express company, but on this occasion had been furnished to the railway company, which set him to work in the transportation of the United States mail under an arrangement between the railway company and the United States government. The plaintiff was injured by a heavy iron stanchion which was part of the equipment of the car, and which fell en route, striking him on the head and inflicting a fracture of the skull. The jury found a verdict for the plaintiff in the sum of $18,500 against both defendants, and from the judgment based thereon, the appeal in this case was taken.

The mail car was new and was making its first trip on a regular run from Cincinnati, Ohio, to Norfolk, Va. It was equipped with upright stanchions placed at intervals in two lines which ran lengthwise parallel to the sides of the car. There was an aisle between the two rows of stanchions and likewise a space between each row of stanchions and the side of the car next to it. The stanchions were made of 1½" steel pipe, 20 pounds in weight, and were of two heights 7'5 3/8" and 7'8 1/16" respectively. There were 34 stanchions in all. They were of use in the separation of the mails for various points of destination. When in use the stanchions stood in a perpendicular position, the lower ends resting in slots in the floor of the car, and the upper ends being permanently fastened by swivel joints to the ends of steel brackets which extended inwardly from the sides of the car. The swivel joints allowed the stanchions, when lifted out of the slots in the floor, to be moved in any direction for the convenient handling of the mail. When not in use, the stanchions were laid in a horizontal position near the top of the car, and when so disposed, were supported at one end by the swivel joints, and at the other, by hooks suspended from the roof of the car or by grooves on top of the brackets from which the swivel joints were suspended. The hooks and grooves were not provided with safety catches or locks, but the shape of the hooks and of certain ledges in the ends of the brackets were designed to prevent the stanchions from falling out of the receptacles upon the floor of the car. It will be thus seen that the number of receptacles in which the lower ends of the stanchions could be placed exceeded the number of stanchions. There were in fact 54 hooks and grooves in the brackets, and in addition it was physically possible to place the ends of the stanchions on the brackets outside of the grooves.

The difference between the arrangement of stanchions in the new car above described and that in the cars previously in use, with which the plaintiff had had two years' experience, was that in the latter the stanchions were detachable at both ends. When in use, they fitted in grooves at the top of the car and in slots in the floor. When they were not in use, they were separated at both ends and laid out of the way in racks or placed against the walls of the car.

The car in question was loaded with mail at Cincinnati on the evening of the day before the plaintiff's injury, and was brought thence, without change of contents, to Bluefield, W. Va., where it arrived on the morning of December 14. The car was solidly packed with mail at Cincinnati from the rear end of it to the two forward side doors, with the exception of a small passage across the car at these doors. There was no passage or aisle running longitudinally through the center of the car. The load extended from joints. At each end of the mail, the stanchions were in the sockets in the floor, but the stanchions in between were resting in the receptacles overhead. The employees who loaded the car at Cincinnati testified that the stanchions detached from the floor were properly placed in the receptacles before the mail was packed in the car beneath them; but that after the car had been loaded, the stanchions were not again examined to ascertain whether they remained in a secure position.

The plaintiff testified that he had never seen a car of this type before he entered it at 8:30 a. m. on the day of the accident for his regular run between Bluefield and Norfolk; and that he received no instructions from any one as to the difference between it and those to which he had been accustomed. He was not able to see the position of all the stanchions in the car because the mail obstructed his view, and he did not know in what position they were at the top of the car. After leaving Bluefield, he put mail off at various stations, took in smaller quantities of mail at divers points, and made separations for the stations and connecting lines en route. As the train proceeded toward Norfolk, the quantity of mail in the car was reduced and the height of the piles was diminished. The train was due at Petersburg at 4:35 p. m. At Blackstone, Va. (a point 30 miles west of Petersburg), he received a few sacks of mail, and a short time afterward, began to separate it. As he was stooping over to read the label on a sack which he had taken up from the floor, he was struck on the head by a falling stanchion. Prior to the accident he had had no occasion to handle or to move or to examine in any way any of the stanchions in the car. He had moved the mail that was stacked under the stanchion which fell, when he came into the car and had replaced it with other mail. He did not know what caused the rod to fall, or whether it had been resting in a hook or groove or on top of a bracket.

The case was tried in the court below upon the assumption that the common-law rules relating to the duties and liabilities of master and servant should be applied. The plaintiff relied upon the duties of the master to exercise ordinary care to provide a safe place and safe appliances to his employee, and secured an instruction from the court that if the jury believed that these duties had been neglected, and as a result, the plaintiff had been injured without negligence on his part, he was entitled to recover. At the request of the plaintiff, the court also instructed the jury that it was the duty of a master to use due care not to expose his servant to unnecessary risks, and that the master was bound to instruct the servant as to the use and dangers of machinery, when put in charge of dangerous equipment; and that if the equipment of the car was dangerous and the failure of the defendants to instruct, the plaintiff was the cause of his injury, then he was entitled to a verdict. Thus it appears that the plaintiff relied at the trial upon claims of negligence on the part of the defendants — (1) as to an unsafe place and unsafe appliances with which to work and (2) as to the failure of the defendants to instruct the plaintiff in regard to the appliances in the car.

In addition to the plaintiff's testimony, a fellow railway mail clerk testified that he saw the car on its maiden trip at Roanoke before the accident and then expressed the opinion that the car was unsafe because the receptacles for the stanchions were not provided with locks or safety catches, and that therefore there was danger that they would fall. This witness did not say that the appliances themselves were defective or in bad condition, and his testimony was limited to the bare expression of personal opinion indicated, without any explanation of how this could occur, except the suggestion that the stanchions might not be properly placed in the receptacles, or might be displaced in the storage of mail in the car, by the workmen. The evidence relied on to support the plaintiff's theory that it was negligence to fail to instruct him, was this opinion of his fellow employee; and his own testimony of unfamiliarity with the appliances already noticed.

On the other hand, the testimony of the defendants showed that the car was in all respects safe and of proper construction and that there was no occasion, under the circumstances of the employment, to give instructions to the plaintiff. Numerous witnesses testified to their familiarity with appliances of this sort, and expressed the opinion that they were entirely safe. It was proved by uncontradicted evidence that the car was designed and built by a competent contractor in accordance with specifications furnished to the railway company by the Post Office Department of the United States. It was shown that during the interval of two years...