American Car & Foundry Co. v. Barry

• Decision Date: 17 April 1912
• Docket Number: 3,559.
• Citation: 195 F. 919
• Parties: AMERICAN CAR & FOUNDRY CO. v. BARRY.
• Court: U.S. Court of Appeals — Eighth Circuit

195 F. 919

AMERICAN CAR & FOUNDRY CO. v. BARRY.

No. 3,559.

United States Court of Appeals, Eighth Circuit.

April 17, 1912

Tyson S. Dines (M. F. Watts, Wm. R. Gentry, and Edwin W. Lee, on the brief), for plaintiff in error.

Herbert R. Marlatt (George S. Johnson, Charles A. Houts, and Harry B Hawes, on the brief), for defendant in error.

Before HOOK and SMITH, Circuit Judges, and MARSHALL, District Judge.

SMITH Circuit Judge.

The plaintiff in error, the American Car & Foundry Company hereafter called the defendant, is engaged at St. Louis in the manufacture of cars for various railroads. September 29 1909, a flat car was complete and ready for delivery to the Western Pacific Railroad. It was discovered that sufficient room did not exist between the upper and lower bolsters to give the car the proper side motion.

Fabe White, who was a foreman in the employ of the defendant called in Mr. Joseph F. Barry and others to assist in fixing it. Mr. Barry is the defendant in error, and will be hereafter called the plaintiff. One end of the car was raised on a jackscrew, and dirt and waste was thrown into the centerplate and the car let down. It was found too much had been placed in the centerplate, and the car then had too much side motion, and it was again raised, and Mr. Barry was sent under the car to remove some of the trash. While he was attempting to do this the jackscrew telescoped-- that is, the stem slipped down in the frame-- and Mr. Barry's hand was caught, and he received injuries that required the amputation of his fingers. Subsequently they failed to heal, and a second operation became necessary. He sued for $7,500 and the jury returned a verdict in his favor for $5,000, upon which judgment was rendered, and the car company sued out this writ of error.

The first assignment of error is based upon the admission of the testimony of two witnesses, St. Clair and Kelly, evidently offered for the purpose of showing that the jackscrew in question had been out of repair and operating in the same way for nearly three weeks.

Fabe White testified that they usually had two or three jacks, generally a screw and a couple of stepjacks. The jack in question was a stepjack. Mr. St. Clair testified that an accident happened to him nearly three weeks before with such a jack; that the jack with which the accident to him happened was a lever jack, had no cap on that he knew of; that the jack slipped, and the lever flew up and hit him, causing him to bleed in the mouth.

Sam Kelly testified that he was working at the defendant's factory; that he was working with St. Clair at the time he was hurt; that the jack used was a lever jack; that he had one side of the car jacked up and the jack slipped when he was laying it down and the lever flew up and hit him under the jaw; that that jack had no cap on it. He was also present at the time of the accident complained of, and testified that the jack was standing when the car came down the last time; that they attempted to raise the car after the accident, but were unable to do so until they sent for a screwjack; that he had seen the jack slip before aside from the time that St. Clair used it; that in raising it it would go such a distance, then it would not work any more, but slip back. Mr. Barry also testified there was no cap on the jack with which he was hurt, and that the jack was taken from track one or two, and that it was the only jack he had noticed that had the cap off. The jack was not produced on the trial, and the evidence was sufficient to identify the jack used by St. Clair with the one used at the time in question, and the evidence was admissible.

It is complained that the court failed to give the peremptory instruction asked for the defendant.

The jack in question was in use regularly upon the defendant's premises. About three weeks before the accident, as the jury had a right to find, St. Clair was using the same jack in raising a car when the jack slipped down and the handle flew up and hit him. When the accident to plaintiff took place, the stem slid down into the frame, and, when it was attempted to raise the car to release the plaintiff, the same thing took place.

It will be conceded that between employer and employe the doctrine of res ipsa loquitur has little, if any application. Patton v. Texas & Pacific Railroad, 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361; Midland Valley Railroad Co. v. Fulgham, 181 F. 91, 104 C.C.A. 151; Carnegie Steel Co. v. Byers, 149 F. 667, 82 C.C.A. 115, 8 L.R.A.(N.S.) 677; Northern Pacific Railway Co. v. Dixon, 139 F. 737, 71 C.C.A. 555; Peirce v. Kile, 80 F. 865, 26 C.C.A. 201. This rule is, however, not of unvarying application. Palmer Brick Co. v. Chenall, 119 Ga. 837, 47 S.E. 329; Armour v. Golkowska, 202 Ill. 144, 66 N.E. 1037; Petrarca v. Quidnick, 27 R.I. 265, 61 A. 648;

Ross v. Double Shoals Cotton Mills, 140 N.C. 115, 52 S.E. 121, 1 L.R.A.(N.S.) 298; Fearington v. Blackwell Durham Tobacco Co., 141 N.C. 80, 53 S.E. 662, and other cases.

The law must be deemed settled so far as this court is concerned by decisions of the Supreme Court and of this court, but the question recurs, Is it essential for the plaintiff to rely upon that maxim in this case? In Bradford Glycerine Co. v. Kizer, 113 F. 894, 51 C.C.A. 524, in an action by a servant against his master to recover for an injury caused by an explosion of nitroglycerine, it was an undisputed fact that the nitroglycerine exploded spontaneously, and there was evidence tending to show that, if pure and properly made, it would not so explode, but that it would, if impure. The court instructed the jury:

'When there is as in this case an explosion of this nitroglycerine, there is a presumption arises that it was from some inherent defect, something in the character of the nitroglycerine itself, due to surplus acid or some other cause, that made it explode, without the intervention of any other agency. Now, that being the presumption, unless that is explained by the evidence, you are warranted in coming to the conclusion that the defendant furnished the plaintiff with impure nitroglycerine, and in that departed from his duty as an employer.'

The Court of Appeals said:

'Under the evidence in this case, there could be no claim that the cause of the accident could not be accounted for. It was accounted for if nitroglyerine, when properly manufactured, could not explode spontaneously,

...