Barrett v. Virginian Ry. Co.

• Citation: 244 F. 397
• Decision Date: 05 July 1917
• Docket Number: 1521.
• Parties: BARRETT v. VIRGINIAN RY. CO.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

244 F. 397

BARRETT v. VIRGINIAN RY. CO.

No. 1521.

United States Court of Appeals, Fourth Circuit.

July 5, 1917

In action to recover for injuries from defective steps of engine which plaintiff foreman of defendant's roundhouse was required to repair, evidence held insufficient to show that defendant had notice of defect.

W. L Welborn, of Roanoke, Va. (Welborn & Jamison and John G Challice, all of Roanoke, Va., on the brief), for plaintiff in error.

H. T Hall, of Roanoke, Va., and G. A. Wingfield, of Norfolk, Va (Hall & Apperson, of Roanoke, Va., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge.

This is a suit instituted by plaintiff in error, plaintiff below, in the District Court of the United States for the Western District of Virginia, to recover damages on account of injuries sustained by plaintiff, who was the foreman of the roundhouse, while attempting to clean out a sand pipe which was stopped up. Plaintiff was employed by the defendant as a machinist at Elmore, W. Va., at which a roundhouse is maintained where engines are stored and certain repairs are made.

Among other things, plaintiff, by virtue of his employment, was required to repair engines and other rolling stock at that point. The engine upon which plaintiff was working at the time he sustained the injury was being used and had been used for some time, in pusher and helper service. This particular engine had been placed upon what is known as the 'ready track' to be employed in taking a train out of Elmore. After being placed, the engineer in charge discovered that the sand pipe was stopped up, and plaintiff was requested to clean it out. In order to perform this service it was necessary for the plaintiff to climb upon the engine. In front of the engine there were steps leading from the ground up over the pilot to the running board. In performing this service plaintiff made several trips up on the engine, and while coming down on the last trip he slipped and fell and sustained the injury upon which this action is based.

Plaintiff says that shortly after he had fallen and had been removed by other employes to a point several feet in front of the engine he looked at the engine and remarked that the step from which he slipped and fell was slanting from one to one and a half inches forward. However, there was no evidence offered tending to corroborate this statement by the other employes who were present. The other employes present testified that they did not observe that the step was slanting or that there was anything wrong with it. In addition to the plaintiff's testimony plaintiff introduced two other witnesses who said that they examined this step a month or two after the accident, and that it was slanting forward; the front portion of the step being from one to two inches lower than the rear portion.

Both the day and night foreman of the roundhouse at Elmore, who had charge of keeping the engine in repair, testified that they never knew there was anything wrong with the step. The engineer who had been running the engine and the hostler who had charge of it in the roundhouse also testified that they had no knowledge of any defect in the step. There was no evidence produced by the plaintiff to show how the alleged defect in the step was caused or how long it had been in that condition.

When all of the evidence had been introduced, the defendant moved the court to direct the jury to return a verdict in favor of the defendant. This motion was opposed by the counsel for the plaintiff, and after the motion was fully argued the court took the same under advisement from Saturday afternoon until Monday morning. When the court convened Monday morning the judge rendered an opinion in writing, which is made a part of the record, sustaining the defendant's motion to direct a verdict. After the court had rendered its decision, the plaintiff asked to be permitted to take a voluntary nonsuit. The court refused to grant plaintiff's request, and directed the jury to return a verdict in favor of the defendant, and judgment was entered accordingly. The plaintiff excepted, and the case now comes here on a writ of error.

Only two points are involved in this controversy: First, as to whether the court below erred in directing a verdict in favor of the defendant; second, as to whether the court erred in refusing to permit the plaintiff to take a nonsuit. It is earnestly contended by counsel that plaintiff's injury was due to the failure of the defendant to provide a safe and suitable place in which plaintiff was required to work at the time he was injured; in other words, it is insisted that the step on the engine was carelessly and negligently constructed, and that this was the proximate cause of plaintiff's injury. While it is well settled that the master must...