CHICAGO, M., ST. P. & PR CO. v. Busby, 6105.
| Decision Date | 20 June 1930 |
| Docket Number | No. 6105.,6105. |
| Citation | 41 F.2d 617 |
| Parties | CHICAGO, M., ST. P. & P. R. CO. v. BUSBY. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Murphy & Whitlock, of Missoula, Mont., and R. F. Gaines, of Butte, Mont., for appellant.
Miles J. Cavanaugh, Lewis Brown, and Lowndes Maury, all of Butte, Mont., for appellee.
Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.
This is an appeal to review a judgment in favor of the plaintiff in an action to recover damages for personal injuries. At the time of receiving the injuries complained of the appellee was a member of an extra gang working on the main line of the appellant's railroad, at a point about two miles west of Vendome station in the state of Montana. The gang had their living quarters at Vendome, and were taken to and from work on trailers drawn by gasoline driven motorcars. The wheels of the motorcars were designed to be rigid, so that they would not turn upon their axle. This rigidity was maintained by a fibrous bushing placed around the axle, separating it from the wheel. The bushing also served as an insulator to prevent electric current from passing from the tracks to the motorcars, so that the motorcars would not operate the automatic electric signals used on the main line in connection with the operation of trains. Two motorcars and five trailers were used in transporting the men to and from work. One of the motorcars was operated by the appellee, and he apparently had charge of both. The bushing on one of the wheels of his motorcar was worn and defective, so that it would not hold the wheel rigidly or firmly on the axle. On the day of the accident in question the appellee proceeded from Vendome to the place of work for the purpose of bringing the gang back to Vendome for lunch. On the return trip to Vendome the motorcar was derailed, by reason of the defect in the wheel, causing the injuries for which a recovery was here sought.
The principal assignments of error challenge the sufficiency of the testimony to support the verdict. While frankly conceding that the car was defective, as claimed, and that such defect was the proximate cause of the injuries to the appellee, the appellant insists that it was the duty of the appellee to make the necessary repairs, and that his failure so to do was the sole proximate cause of the accident. It may have been, and perhaps was, the duty of the appellee to look after repairs in general, but he was under no obligation to purchase parts or furnish materials for that purpose. The latter duty devolved upon the appellant, and there was testimony tending to show that its officers and agents were notified from time to time of the defect in the car and the nature of such defect, and that demands had been made for the requisite repairs, or parts, which were never complied with. Under such circumstances, the neglect would be that of the appellant rather than of the appellee. There seems to be some contention that the appellee should have repaired the car by taking parts from other cars, but the testimony fails to show that he was requested so to do, or that he was authorized to dismantle one car for the purpose of repairing another. The question of fault in failing to keep the car in proper repair was for the jury, therefore, and not for the court.
It is next contended that the appellee assumed the risk. Unless otherwise provided by law, every servant assumes the ordinary risk incident to his employment, and also extraordinary risks arising from the negligence of the master or fellow servants, if the danger is fully known to and appreciated by him. But there was testimony in this case tending to show that the appellee objected to using the car on the return trip just before the accident, because of its defective condition, and that the foreman directed him to do so, promising to get in touch with the storekeeper at Deer Lodge and the superintendent and see if he could not have the car replaced on the following day. And, where a servant proceeds with...
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