Chicago, M. & St. P. Ry. Co. v. Moore

• Decision Date: 07 January 1909
• Docket Number: 2,795.
• Parties: CHICAGO, M. & ST. P. RY. CO. v. MOORE.
• Court: U.S. Court of Appeals — Eighth Circuit

166 F. 663

CHICAGO, M. & ST. P. RY. CO. v. MOORE.

No. 2,795.

United States Court of Appeals, Eighth Circuit.

January 7, 1909

Syllabus by the Court

In trials by jury, the jurors are not restricted to a consideration of the facts directly proven, but may give effect to such inferences as reasonably may be drawn from them. Nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct.

In respect of questions upon which men of ordinary observation and experience have some practical knowledge and are not incapable of forming opinions of their own, jurors are not dependent upon the opinions of experts, even though they would be assisted by them.

The ultimate and controlling test of the exercise of reasonable care is, not what has been the practice of others in like situations, but what a reasonably prudent person would ordinarily have done in such a situation; and the practice of others is evidence, but not the sole evidence, of that test.

M. B Webber (Edward Lees, on the brief), for plaintiff in error.

L. L Brown (W. D. Abbott and S. H. Somsen, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges, and AMIDON District judge.

VAN DEVANTER, Circuit Judge.

This was an action for personal injuries sustained by the plaintiff through a falling of the boom of a derrick or loading jack which he and other servants of the defendant were using in hoisting steel rails from the ground to a flat car. The derrick was securely mounted upon the near end of an adjoining flat car, and its principal parts were a vertical iron mast of considerable size, a boom extending upward at an angle from the base of the mast, and a guy rod connecting the top of the mast with the boom and supporting the latter.

At the top of the mast was a shoulder, and projecting above that was a spindle 2 or 3 inches high and 1 3/4 inches in diameter. An eye or hole in the end of the guy rod fitted over the spindle, and above the eye was a flat washer. Above the washer was a hole in the spindle three-eighths of an inch in diameter, into which it was designed that a pin or key should be inserted of sufficient strength and size to hold the guy rod in place; that is, to keep it from being pulled, or slipping, off the spindle. The length of the boom was between 13 and 15 feet the length of the guy rod was about 8 feet, and the height of the mast about 8 feet. The connection of the guy rod with the boom was enough higher than its connection with the mast to make its inclination about 35 degrees from the horizontal. The boom with its attachments was of such weight that the combined strength of five or six men was required in lifting it, and the weight of each rail to be hoisted was 800 pounds. In use the upper end of the boom, from which a cable was suspended, was swung around to the side, and the cable was fastened to a rail. The cable was then moved upward, thereby lifting the rail, and the boom was swung back over the car upon which the rail was to be placed. While the derrick was being so used, and while the plaintiff in the proper discharge of his duties was guiding a rail to its proper place upon the car, the pin or key at the top of the mast gave way, the guy rod was pulled off the spindle, and the boom fell, striking the plaintiff and inflicting injuries upon him which were and are painful, serious, and permanent. The negligence charged in the complaint, omitting what has since become immaterial, was that the defendant carelessly and negligently provided and placed in the hole in the spindle at the top of the mast a pin or key which was not of sufficient strength or size to withstand the strain to which it would be subjected in the service in which the derrick was to be used. This and all other negligence on the part of the defendant was denied in the answer, but it was admitted therein that the defendant used the derrick in the service described, that the plaintiff was injured by the falling of the boom while the derrick was being so used, and that he was then in the discharge of his duties as a laborer in the defendant's service. Upon the trial, which was to the court and a jury, the evidence produced by the plaintiff, in addition to proving the facts before stated, also proved, or tended substantially to do so, that the derrick had been used as here described 'off and on' for seven or eight months; that on the occasion in question it was being used in the customary way, nothing unusual occurring in that regard; that after the accident the head and point of a twenty-penny wire nail were found near the base of the mast, the point being pronouncedly bent, and another part of such a nail was taken out of the hole in the spindle; that in size and otherwise the three pieces appeared to be parts of the same nail; that all were rusty upon the exterior, and at one place of severance the ends were bright, while at the other they showed a rusty break extending partly through the nail and were otherwise bright; and that the pin by which the guy rod was to be held in place on the spindle 'was not supposed to be a nail-- it was supposed to be a key.'

The part of the nail taken out of the hole in the spindle was preserved, was produced in evidence, and has been transmitted to this court as part of the record. It is three-sixteenths of an inch in diameter, or just one-half the diameter of the hole from which it was taken, is 1 3/4 inches in length, or just the diameter of the spindle, is made of soft steel such as is commonly used in wire nails, and appears to have been cut or ground off at one end and partially severed in that way at the other, an old break completing the severance; but it does not appear to have been appreciably worn or reduced in size between its ends. Some of the witnesses spoke of seeing this part of the nail 'driven out' of the hole in the spindle, but this cannot be taken as meaning more than that it was poked out, for the same witnesses said that it 'came right out' and that the hole 'was larger than' the nail. There was no evidence of how long the nail had been in the spindle, save such as was afforded by its rusty condition; nor was there any evidence of the amount of strain to which it was subjected, or of its sufficiency in strength and size, save such as was afforded by the description of the derrick, its several parts and the mode of operating it, by the weight of the boom and the rails to be hoisted, and by the part of the nail produced in evidence. The defendant produced no evidence, and the case was submitted to the jury upon these questions, among others: Did the defendant exercise ordinary care to provide a pin or key of sufficient strength and size to make the connection between the guy rod and the top of the mast reasonably safe when the derrick was in use? And, if not, what sum would fairly and reasonably compensate the plaintiff for the injuries inflicted upon him by the consequent falling of the boom? Other charges of negligence were also submitted to the jury, but they, as also what was said about them in the charge, have become immaterial, because, at the request of the defendant, the court submitted to the jury the special interrogatory, 'What was the immediate cause of the falling of the boom?' to which the jury returned the answer, 'The insufficient strength and size of the pin or key,' meaning, as the record fairly discloses, that the nail was not of sufficient strength and size to be used as a pin or key. The verdict and judgment were for the plaintiff, and the defendant prosecutes this writ of error.

Preliminarily, it should be said that the court rightly charged the jury that there could be no recovery by the plaintiff unless the defendant was guilty of some of the negligence charged, that the burden of proving such negligence was upon the plaintiff, that no inference or imputation of negligence could arise out of the fact that the pin gave way on the occasion in question, that the defendant was not bound absolutely to provide a safe pin, but only to exercise ordinary care to provide a reasonably safe one, and:

'Mark you, that the claim of negligence is that this pin which held that rod, which ran from the end of the boom to the top of the mast, was of insufficient size and strength to withstand the strain which would naturally be brought against it in the lifting of the rail from the ground to the car. This is the first claim of negligence. Now, gentlemen of the jury, you have heard the evidence as to the size of that pin, as to the character of that apparatus, and as to the way in which the work was done; and the first question for you to ask yourselves when you get to the jury room is this: Did the defendant company exercise ordinary care in the furnishing of that apparatus as to the pin? Would an ordinarily prudent man have furnished an apparatus with a pin of that size and strength to do that work? Or would an ordinarily prudent man have said, that pin is not of sufficient size and strength to stand the strain which will naturally be brought against it by the lifting of these rails? If in answering that question, you say that an ordinarily prudent man would have said that the pin was not of sufficient size and strength to withstand that strain, then the defendant company has been guilty of negligence in furnishing the derrick with that pin on top of the mast; that is, if you say that an ordinarily prudent man, performing the duty of furnishing a reasonably safe appliance, would have said that that pin would not be reasonably safe, considering the work that the

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