Brownell Imp. Co. v. Sweeney

• Decision Date: 08 June 1915
• Docket Number: 2607.
• Parties: BROWNELL IMPROVEMENT CO. v. SWEENEY.
• Court: U.S. Court of Appeals — Sixth Circuit

223 F. 510

BROWNELL IMPROVEMENT CO. v. SWEENEY.

No. 2607.

United States Court of Appeals, Sixth Circuit.

June 8, 1915

L. B Bacon, of Cleveland, Ohio, for plaintiff in error.

H. F Payer, of Cleveland, Ohio, for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

KNAPPEN Circuit Judge.

Thomas Finnerty, since deceased, recovered verdict and judgment against plaintiff in error, whom we shall call defendant, for personal injuries sustained, as alleged, through defendant's negligence while decedent was in its employ.

At and for some time before the accident defendant was engaged in certain railroad construction work for the Pennsylvania Company in Cleveland, including the building of a trestle for carrying three elevated railroad tracks, which tracks were all laid and in condition for use. There was also a surface track between the second and third elevated tracks, and several feet below the upper surface of the trestle. Decedent was employed as night watchman; his duties requiring him, as alleged, to pass, not only over the surface track, but over the elevated tracks, to guard certain of defendant's property upon the trestle. He was relieved from duty a little after 6:30 a.m. of the day on which the accident occurred which was Sunday. According to his testimony, he waited some time for the appearance of defendant's superintendent for the purpose of giving the latter information and report in defendant's interest; that between 7:30 and 8 o'clock, the superintendent not having appeared, decedent started home, walking up the incline of the trestle upon a plankway about 5 or 6 feet wide, between the first and second elevated tracks, his ordinary way from his work to his home being, as alleged, over the trestle; that while upon the level of the trestle he saw the superintendent on the track below, and accordingly called to and started toward him, walking across the two rails of the adjoining track (easterly) and then stepping upon a plank 12 inches wide spiked onto the outer (eastern) end of the ties, its inner edge being about 4 inches from the outer rail. As he stepped upon this plank his foot caught in what turned out to be a protruding spike in the plank and he was thrown down the incline, receiving serious injuries. It was decedent's claim that the plank in question was controlled and maintained by defendant, and was at the time, and long before had been, regularly in use by decedent and a large number of defendant's employes as a walkway in going to and returning from work, that such use was with defendant's knowledge and without its objection, and that defendant negligently permitted the existence of the projecting spike.

Defendant claimed that decedent was intoxicated at the time, and that the fall occurred from that cause; that decedent was discharged just before the accident because of this intoxication; that the plank was not in its control or being maintained by it at the time of the accident, but was under the sole control of the Pennsylvania Company, which had begun to run its trains over the trestle; and that the plank was never intended as a walkway, but was merely a part of the track construction. Defendant's motion for instructed verdict was denied, and the case submitted under instructions that, in order to recover, it must be established (1) that the plank was at the time of the accident under defendant's control and management; (2) that it was used by defendant's workmen in going to and coming from...