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

• Decision Date: 10 March 1933
• Docket Number: No. 4848.,4848.
• Citation: 63 F.2d 917
• Parties: NEW YORK, C. & ST. L. R. CO. v. BOULDEN.
• Court: U.S. Court of Appeals — Seventh Circuit

63 F.2d 917 (1933)

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

No. 4848.

Circuit Court of Appeals, Seventh Circuit.

March 10, 1933.

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Russell P. Harker, of Frankfort, Ind. (L. L. Bomberger, of Hammond, Ind., and W. J. Stevenson, of Cleveland, Ohio, of counsel), for appellant.

H. H. Patterson, of Chicago, Ill. (Edmund C. Maurer, of Chicago, Ill., of counsel), for appellee.

Before EVANS and SPARKS, Circuit Judges, and WILKERSON, District Judge.

SPARKS, Circuit Judge (after stating the facts as above).

The complaint is in three paragraphs and their differences which are slight relate to the charges of negligence. Appellee testified that the accident was caused by striking his foot against the post, and from this fact it is quite obvious that the negligence relied upon was in permitting the post to protrude above the cinders. Hence the questions presented for our consideration are: (1) Whether there was negligence in permitting the post to protrude above the cinders; and (2), if so, whether it was so normal an incident to appellee's employment or so clearly observable that he could be held to have assumed the risk of it.

This action is brought under the Federal Employers' Liability Act, c. 149, §§ 1 and 3, 35 Stat. 65 and 66, 45 USCA §§ 51 and 53.¹

Under this Act an employer is not an insurer of a safe place to work for his employee, but he is liable only for his negligence in respect thereto. Missouri Pacific R. Co. v. Aeby, 275 U. S. 426, 48 S. Ct. 177, 72 L. Ed. 351. An employer has a right to presume that his employee will exercise care for his own safety, and an employer is not to be held negligent merely because he did not guard against the negligence of his employee. New York, Chicago & St. Louis R. Co. v. Ostman, 146 Ind. 452, 45 N. E. 651; Pittsburgh & Connellsville R. Co. v. Sentmeyer, 92 Pa. 276, 37 Am. Rep. 684; Texas & Pacific R. Co. v. Eason (C. C. A.) 92 F. 553. When an injury to an employee is alleged to have been caused by an act or omission to act on the part of the employer, and such injury was not the natural and probable consequence of such act or omission, and should not reasonably have been foreseen as a result of such act or omission, then a recovery by such employee will be denied, either for the reason that such act or omission was not negligent, or that it was not the proximate cause of the injury. New York, New Haven & Hartford R. Co. v. Dailey (C. C. A.) 179 F. 289; Great Northern R. Co. v. Johnson (C. C. A.) 207 F. 521.

Ordinarily, the questions of negligence and the assumption of risk are questions of fact for the jury to determine unless the facts are not inconsistent and present a situation so plain that intelligent men would not draw different conclusions from them. Western Stone Co. v. Muscial, 196 Ill. 382, 63 N. E. 664, 89 Am. St. Rep. 325; Christiansen v. Wm. Graver Tank Works, 223 Ill. 142, 79 N. E. 97, 7 Ann. Cas. 69; Martin v. Wabash R. Co. (C. C. A.) 142 F. 650, 6 Ann. Cas. 582; Klotz v. Power & Mining Machinery Co., 136 Wis. 107, 116 N. W. 770, 17 L. R. A. (N.S.) 904. Therefore unless the facts in the instant case are inconsistent with the existence of negligence and present a situation so plain that intelligent men would draw the same conclusion, that is to say, that appellant was not guilty of negligence, then it must be conceded that the question of appellant's negligence was properly submitted to the jury, and in that event we are bound by the verdict as to the existence of negligence. Likewise, unless the facts relating to the existence and maintenance of the post in the platform in the condition in which it was at the time of the accident, present a situation so plain that intelligent men would draw the same conclusion, that is to say, that the post was an ordinary risk of appellee's employment, or an incident thereto, then the question of the assumption of risk was properly submitted to the jury, and we cannot disturb its finding in that respect.

Aside from the question of assumption of risk, we are convinced that the court properly submitted the question of appellant's negligence to the jury. The projection of the post above the cinders was in no respect necessary to the performance of appellant's or appellee's legitimate duties, and we think it cannot be said that intelligent men would at once agree that it was not negligence on appellant's part to permit said post to extend above the surface of the platform at any place where persons upon the trains were accustomed and impliedly invited to alight. It may be conceded, as appellant suggests, that it should not be required to maintain as expensive a platform in a small town as in a large city, but that fact cannot excuse it from liability for maintaining the less expensive platform in a negligent manner. It may reasonably be inferred from the evidence that the condition of the post at the time of the accident was largely caused by rain washing the cinders from around the post through the joint of the girders, and this condition was permitted to remain the same for one year immediately preceding the accident. These facts constitute substantial evidence in support of the verdict that appellant was guilty of negligence.

The question then arises whether the condition of the post was a risk which was normally incident to appellee's employment. An employee assumes all such risks whether known to him or not. Delaware, Lackawanna & Western R. Co. v. Koske, 279 U. S. 7, 49 S. Ct. 202, 73 L. Ed. 578; Jacobs v. Southern R. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970; Seaboard Airline Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475. An employee assumes all risks arising from the negligence of his employer, if such risks are known to him, or are so obvious and so plainly observable that an...