American Locomotive Co. v. White

• Decision Date: 06 May 1913
• Docket Number: 1,694.
• Citation: 205 F. 260
• Parties: AMERICAN LOCOMOTIVE CO. v. WHITE.
• Court: U.S. Court of Appeals — Third Circuit

205 F. 260

AMERICAN LOCOMOTIVE CO. v. WHITE.

No. 1,694.

United States Court of Appeals, Third Circuit.

May 6, 1913

Reed Smith, Shaw & Beal and George E. Shaw, all of Pittsburgh Pa., for plaintiff in error.

John S Weller, John O. Wicks, and Richard W. Martin, all of Pittsburgh, Pa., for defendant in error.

Before GRAY, BUFFINGTON, and McPHERSON, Circuit Judges.

J. B McPHERSON, Circuit Judge.

The facts of this case are as follows:

A locomotive built by the defendant company had been moved from the erecting shop into the yard, and was there undergoing inspection under steam by an agent of the purchaser. A running board attached to the left side of the boiler had been found to need straightening, and had been taken off and lowered to the ground. The straightening having been finished, a foreman in control of a gang of laborers undertook to replace the board, and in the course of executing his orders the plaintiff suffered the injuries complained of. The board was of steel, about 12 feet long and 23 inches wide, and weighed nearly 300 pounds. It was designed to rest upon two or three brackets, and thus supported was to be further secured by bolts. The brackets were about 9 feet from the ground, too high to permit the laborers to lift the board directly into place by hand. The foreman planned to move it up to the brackets by sliding it diagonally along certain projections on the front end of the locomotive, and in carrying out his plan the laborers were obliged to occupy more or less awkward and precarious positions on the locomotive at varying heights from the ground. At first they objected, but they finally obeyed the foreman's orders. For some reason not disclosed, and apparently not known, the board escaped from the laborers' control, knocked the plaintiff to the ground, and broke his thigh, injuring him severely and permanently. The negligence alleged is directing the work to be done by an unnecessarily dangerous method. It is alleged that the danger could have been much decreased, perhaps wholly avoided, by using a movable crane that appears to have been available.

It is not disputed that the Pennsylvania act of 1907 (P.L. 523) made the foreman a vice principal, and the only questions therefore that call for notice are the questions raised by the fourth, fifth, and sixth assignments of error. Under the fourth and fifth it becomes necessary to inquire whether it is competent for a servant, as a part of his effort to prove the master's negligence, to offer evidence that the master did not employ the customary method of doing a particular act. The trial judge admitted evidence that some such device as a crane, or a derrick, was commonly used to do the work in question, and instructed the jury that 'a departure from that custom would be some evidence of negligence. ' He did not say that a departure would of itself be sufficient evidence, but merely that it would be 'some evidence'; and he immediately expanded the thought by adding:

' * * * Because, if a certain custom obtains and a certain manner of doing work, that is evidence that it is a proper way to do it, and a failure to do it that way would be evidence of negligence. You understand that-- a departure from a general custom. But first you must determine whether there was such a custom. And if there was a general custom then you inquire, in the second place, whether there was a departure from that custom. And a simple departure from it would not be evidence, strong evidence, of negligence, because you must take into consideration the circumstances under which it was placed without the aid of a crane.'

We see no error in these instructions. It is no doubt true that if a charge of negligence is based on the use of a particular machine, or on the employment of a particular method, the charge may perhaps be successfully met by evidence that the machine or the method was commonly employed in the business. And it is also true, as the Supreme Court of Pennsylvania has said in Cunningham v. Bridge Works, 197 Pa. 625, 47 A. 846, that:

'The party charging negligence does not show it by showing that the machine was not in common use.'

But this means, we think, that such evidence alone is not sufficient; for other decisions of the same court make it clear that the evidence may sometimes be admissible. Indeed, in Cunningham's Case itself, Mr. Justice Mitchell, while declaring that a jury should always be cautioned against finding negligence 'from the bare fact that the method was not in general use,' goes on to say that such evidence--

'should not in the first instance be admitted on behalf of the plaintiff unless it tends to show that the method pursued was not only unusual but more dangerous in itself than the ordinary one.'

That is to say, if it otherwise appear-- as it did appear from the circumstances of the case now before us-- that the method actually employed was unusually dangerous, evidence that common usage has employed a different method is competent (but of course not decisive) on the question of the master's negligence. The Supreme Court of Pennsylvania has so ruled in several recent cases. In McGeehan v. Hughes, 217 Pa. 124, 66 A. 238, the court said:

'The second assignment of error complains of the rejection of evidence as to the methods which were in ordinary and general use, in unloading iron ore. If an offer had been made to follow this question by evidence tending to show that the method used by defendants was unusual, and was more dangerous in itself than the ordinary method, the question would have been admissible. In the form in which it was presented, and with no indication that it was to be followed with anything further, it was properly rejected.'

In Hollis v. Widener, 221 Pa.at page 76, 70 Atl.at page 288, the following language is used:

' * * * It was certainly competent to show that the platform constructed by the defendant was not that in ordinary use for such purpose, and that its defective construction was the proximate cause of the plaintiff's injuries. Madara v. Pottsville Iron & Steel Company, 160 Pa. 109 (28 A. 639). If the platform prepared by the defendant for the use of the plaintiff in the performance of his work was that ordinarily constructed and furnished for the purpose under like circumstances and conditions, it would certainly go far towards exculpating the defendant from any negligence on the ground of a defective or insufficient platform. If, on the contrary, it was not in ordinary use, but one which the testimony tended to show was dangerous, it might impose liability upon the defendant. The evidence on the question, if embodied in a proper offer, was, therefore, competent as tending to show failure on the part of the defendant to furnish a reasonably safe place for the plaintiff to perform the duties for which he was employed.'

And on the second appeal of McGeehan v. Hughes, 223 Pa. 524, 72 A. 856, the court, while approving the decision in Cunningham v. Bridge Works, supra, and laying down as a general rule that 'the test of negligence in method, in machinery, and appliances is the ordinary usage of the business, ' qualifies the rule as follows:

'It is, however, competent for a plaintiff to show that the method used by the defendant was unusual and more dangerous in itself than the customary method. McGeehan v. Hughes, 217 Pa. 121 (66 A. 238).'

And the federal courts furnish decisions that support the underlying reason for the rule. In Wabash Railway Co. v. McDaniels, 107 U.S. 454, 2 Sup.Ct. 932, 27 L.Ed. 605, the Supreme Court refused assent to the proposition that ordinary care on the part of the master meant only such degree of diligence as is customary or is sanctioned by the general practice and usage that obtains among those intrusted with the management and control of similar enterprises. The exact point there was whether the railway company had exercised due diligence in the employment of a telegraph operator, and (with special reference to this particular subject) the court said:

' * * * And to say, as matter of law, that a railroad corporation discharged its obligation to an employe-- in respect of the fitness of coemployes whose negligence has caused him to be injured-- by exercising, not that degree of care which ought to have been observed, but only such as like corporations are accustomed to observe, would go far towards relieving them of all responsibility whatever for negligence in the selection and retention of incompetent servants. If the general practice of such corporations in the appointment of servants is evidence which a jury may consider in determining whether, in the particular case, the requisite degree of care was observed, such practice cannot be taken as conclusive upon the inquiry as to the care which ought to have been exercised. A degree of care ordinarily exercised in such matters may not be due, or reasonable, or proper care, and therefore not ordinary care, within the meaning of the law.'

This case was referred to with approval in Railway Co. v Behymer, 189 U.S. 468, 23 Sup.Ct. 622, 47 L.Ed. 905. It was there argued that the court below had erred in declining to hold that the question, whether the defendant was liable for the injury complained of, depended on whether a freight train was handled in 'the usual and ordinary way.' The court had declined so to rule, and on the contrary had left...