Norfolk & W. Ry. Co. v. Trautwein

• Decision Date: 10 May 1940
• Docket Number: No. 8213.,8213.
• Citation: 111 F.2d 923
• Parties: NORFOLK & W. RY. CO. v. TRAUTWEIN.
• Court: U.S. Court of Appeals — Sixth Circuit

111 F.2d 923 (1940)

NORFOLK & W. RY. CO. v. TRAUTWEIN.

No. 8213.

Circuit Court of Appeals, Sixth Circuit.

May 10, 1940.

James I. Boulger, of Columbus, Ohio (Bannon, Bannon & Lynn, of Portsmouth, Ohio, on the brief), for appellant.

W. K. Sullivan, of Cleveland, Ohio (Newcomb, Nord & Hornbeck, of Cleveland, Ohio, on the brief), for appellee.

Before HICKS, HAMILTON, and ARANT, Circuit Judges.

HICKS, Circuit Judge.

Appellee, plaintiff below, sued appellant for damages for personal injuries. Appellant challenges the denial of a directed verdict and the correctness of certain features of the court's charge and of certain special instructions.

The action was brought under the Federal Employers' Liability Act. The evidence is, that appellant operated a line of railroad in interstate commerce between the states of Ohio and West Virginia and that appellee was in the employ of appellant as a bridge carpenter.

For about three weeks before appellee was injured he and the crew with which he was working were engaged in repairing a bridge over which appellee operated interstate trains. At the time he was injured appellee was painting the bridge. We think that he was engaged in work so closely related to interstate transportation as to be a part of it, Chicago & N. W. Ry. v. Bolle, 284 U.S. 74, 78, 52 S.Ct. 59, 76 L.Ed. 173, and that the District Court had jurisdiction. We do not deem it necessary to undertake a differentiation of the decided cases on this particular subject.

The bridge was about twelve feet above the ground and the two abutments were about thirty feet apart. In order to do the painting a scaffold was necessary. It was constructed at the south end of the bridge under the supervision of an assistant foreman and by a crew of four men. Three pine boards were used, each of them 2 inches by 10 inches and 16 feet long and weighing from 75 to 100 pounds. The railway running north and south over the bridge had double tracks. The bridge had two outside girders and one center girder between the tracks. The scaffold was constructed under the southbound track by suspending, by means of lines, a board parallel with and just outside the south girder and another board parallel with the middle girder. A third board was laid crosswise from one to the other of the parallel boards. The whole was suspended about a foot and a half or two feet below the girders. The lines were tied to the parallel boards near each end thereof and were secured to some part of the bridge overhead, except the line tied to the south end of the outside board, which ran up the outside of the girder across its top and down the inside, where it was again attached to the board. It was thus looped around the girder. Appellee testified that he did not at any time know that the line was tied back to the board.

There is evidence tending to show that this particular line was tied by one Medla, a fellow workman of appellee, but appellee was called away before it was tied. He was sent to paint at another point on the bridge and after working there for an hour or more was sent by the foreman to paint the outside of the south girder. To get to his working place he stepped from the top of the northern abutment of the bridge on to the north end of the outside board. He had with him a bucket of paint and a brush and he painted one section of the girder between two "stiffeners," a space of about four feet. He then stepped sideways some three or four feet to the next section and just as he started to stoop over to put the bucket down, the board suddenly kicked under the girder and knocked him off. Appellee testified that it seemed to him "like it scissored or sheared right under the girder,"...