Canadian Northern Ry. Co. v. Senske

• Decision Date: 24 December 1912
• Docket Number: 3,746.
• Citation: 201 F. 637
• Parties: CANADIAN NORTHERN RY. CO. v. SENSKE.
• Court: U.S. Court of Appeals — Eighth Circuit

201 F. 637

CANADIAN NORTHERN RY. CO. v. SENSKE.

No. 3,746.

United States Court of Appeals, Eighth Circuit.

December 24, 1912

[Copyrighted Material Omitted]

Hector Baxter, of Minneapolis, Minn. (Clark & Sweatman, of Winnipeg Canada, on the brief), for plaintiff in error.

P. V Coppernoll, of Park Rapids, Minn. (Coppernoll & Woolley, of Park Rapids, Minn., on the brief), for defendant in error.

Before SANBORN and HOOK, Circuit Judges, and McPHERSON, District judge.

SANBORN Circuit Judge.

The plaintiff below was a switchman in the employment of the defendant, the Canadian Northern Railway Company, when the screws which fastened a handhold on the roof of a car of the 'Soo' Railroad Company pulled out as he was ascending the car in the discharge of his duty, and he fell and sustained personal injuries. He sued the defendant for negligence in the inspection of its car and recovered a judgment. These facts were established by the evidence without contradiction at the close of the trial. The screws which held the handhold extended through two boards and into another. After they were pulled out, at the time of the accident, one of the holes was found to be rusty and enlarged at its opening, so that one of the screws could be inserted in it and withdrawn by hand. This rusty and enlarged condition of the hole was not visible, however, when the handhold was in place and there were no marks on the roof where the sides of the handhold rested, such as there would have been if the handhold had been loose and had wabbled before the accident. The boards on the roof of the car were sound, so that, if larger screws had been driven into the same holes after the accident, the boards would have held them. There was no visible crack or decay, or other evidence in the roof or in the handhold, of any defect or weakness in the fastening of the handhold before the accident. The car came upon the railroad of the defendant at Emerson Junction in Minnesota, and it was there inspected by Mr. Brown, one of the defendant's inspectors. He started to make the inspection at the rear end of the train in which this car was found, examined the draft gear, the brakes, and the wheels of each car, went forward and examined in this way the side of each car to see if there was any defect in the irons and sheathing boards, until he reached the front of the train. He then returned on the other side of the train and there made the same inspection of each car, and, when he arrived at his starting point, he climbed up on the top of the train and examined the handholds, running boards, and brakes on all the cars in the train to see if he could find any defects. Whenever he found a defect or anything indicating weakness, or arousing suspicion thereof, he refused to pass the car without a closer inspection and a repair, if repair was needed. He found no defect or weakness, or indication thereof, in the roof of this car or in the fastening of the handhold which gave way. The method of inspection which has now been described, and which he pursued, is called visual inspection, and it is the only method customarily and generally used in the inspection of foreign cars coming upon their railroads by the railroad companies of the United States and their inspectors. Mr. Brown, however, went farther, and made a more thorough inspection. He had a hammer on a handle 20 inches long with a hook or claw on the side opposite the face of the hammer, made for the purpose of this inspection, which he had been directed by the defendant to use when he commenced to work for that company. He tested the security of the handholds on the roofs of the cars by placing the hook under their handles and pulling them up. In that way he tested the handhold which gave way with this hook and found in it neither defect, nor weakness, nor sign of it. There was no evidence tending to show any other or different facts relating to the character of the inspection of the car made by the defendant. At the close of the trial, the company made a motion for a peremptory instruction in its favor, and its denial is assigned as error.

The defendant requested the court to charge the jury that they were not permitted to erect in their own minds any particular standard or grade, or decide any particular methods of doing business, to be negligent, unless the evidence in the case convinced their minds that the method adopted by the defendant was such a method as a railway company exercising ordinary care and prudence in that respect would not have adopted and practiced under the circumstances, and that all the defendant was required to do in the inspection of the car was to use ordinary and usual care, such as is used by railway companies in the general transaction of their business in that respect. The court denied these requests, and instructed the jury that they should consider all the facts and circumstances in the case, the danger to employes from the use of cars and handholds, and their effect upon human life and action, should then say upon their oaths what reasonable inspection of the car required, and, having fixed that standard, should render a verdict for the defendant if the inspection made measured up to that standard, and for the plaintiff if it did not.

In Louisville, N.A. & C. Ry. Co. v. Bates, 146 Ind. 564, 572, 45 N.E. 109, 111, the Supreme Court of Indiana said:

'In making an inspection, it is the duty of the inspector to use the usual and ordinary tests, and such tools as persons of ordinary prudence use, if any, under like circumstances. No man is held to a higher degree of skill or care than a fair average of his trade or profession, and the standard of due care is the conduct of the average prudent man. If the inspection is made in the usual and ordinary way, the way commonly adopted by those in the business, it cannot be said that it was done negligently. In determining whether an inspection was made with ordinary care a jury can only find facts showing whether the same was made in the usual and ordinary manner, the one commonly adopted by men of ordinary care and prudence engaged in the same business under like circumstances. If it was so performed, it was made with due care, and a jury cannot be permitted to say that it was negligent. They cannot be allowed to set up a standard which shall, in effect, dictate the customs or control the business of a community.'

In Shankweiler v. Baltimore & Ohio R. Co., 148 F. 195, 197, 198, 78 C.C.A. 353, 355, 356, the plaintiff had been injured by the breaking of a brake-rod. The defect in the rod was not discoverable before the accident by a visual inspection, but could have been found by stripping the rod. The car had been subjected to a visual inspection. The testimony was, as it is in this case, that this was the only inspection that is usually made by railroad companies while a car is in transit. The Circuit Court of Appeals of the Sixth Circuit, then composed of Judges Lurton, Severens, and Richards, said:

'The box car on which the rod broke was in course of transportation, and there is no question but that the inspection made was all that is customarily made by well regulated and prudently conducted railroads. Against such an inspection the defect was latent, undiscoverable. We think it would be going too far to say that, because the inspection did not disclose the defect, it was not a proper one and ordinary care required something more. Ordinary care does not require an impracticable inspection, one which will cripple and embarrass a railway company in the operation of its trains. * * * The court could not have properly permitted the jury to indulge in mere speculation, find the railroad company guilty of negligence, because, although it used the ordinary method of inspection, it did not use this method suggested by one person, or that method suggested by another, when there was an utter lack of testimony showing or tending to show that either had ever been used by any prudently conducted company, or, if used, would prove effectual.'

In Washington, etc., R.R. Co. v. McDade, 135 U.S. 554, 569, 10 Sup.Ct. 1044, 1049 (34 L.Ed. 235), where the question was what degree of care it was the duty of the railroad company to exercise in furnishing machinery for its employes to use, the Supreme Court declared that a charge that it 'had a right to use and employ such as the experience of trade and manufacture sanctioned as reasonably safe was in strict accord with the principles laid down by the decisions of that court.' In Grand Trunk Ry. Co. v. Ives, 144 U.S. 408, 416, 12 Sup.Ct. 679, 682 (36 L.Ed. 485), this charge was approved:

'You fix the standard for reasonable, prudent, and cautious men under the circumstances of this case as you find them, according to your judgment and experience of what that class of men do under these circumstances, and then test the conduct involved by that standard.'

And in Union Pacific Ry. Co. v. Daniels, 152 U.S. 684, 690, 14 Sup.Ct. 756, 758 (38 L.Ed. 597), the Supreme Court gave its sanction to the rule that the railroad company's duty to keep advised of the condition of its cars and machinery 'was discharged by the defendant if the care disclosed by it in these several matters accorded with that reasonable skill and prudence and care which careful, prudent men, engaged in the same kind of business, ordinarily exercised.'

These authorities, and a multitude more, sustain the established rule that the standard of ordinary or reasonable care is that degree of care (1) which ordinarily prudent persons, (2) engaged in the same kind of business, (3) usually exercise under similar circumstances. It is plain that the care which extraordinarily cautious or unusually careless persons use would not be a correct...