Cincinnati, N.O. & T.P. Ry. Co. v. Thompson

• Decision Date: 12 October 1916
• Docket Number: 2697.
• Citation: 236 F. 1
• Parties: CINCINNATI, N.O. & T.P. RY. CO. v. THOMPSON.
• Court: U.S. Court of Appeals — Sixth Circuit

236 F. 1

CINCINNATI, N.O. & T.P. RY. CO. v. THOMPSON.

No. 2697.

United States Court of Appeals, Sixth Circuit.

October 12, 1916

[Copyrighted Material Omitted]

H. M Carr, of Harriman, Tenn., for plaintiff in error.

W. T Kennerly, of Knoxville, Tenn., for defendant in error.

Before WARRINGTON and DENISON, Circuit Judges, and COCHRAN, District judge.

COCHRAN District Judge.

This was an action on the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 (Comp. St. 1913, Secs. 8657-8665)), removed to the lower court from the state court where it was brought. No question as to the right of removal has been made there or here. It resulted in a judgment for plaintiff for $3,000.

The plaintiff was head brakeman on a freight train on defendant's railroad, which, on August 24, 1911, was running from Oakdale, Tenn., to Danville, Ky., and was an experienced employe. In its course the train stopped at Oneida, Tenn., to fill out with other cars. The railroad, at that point, runs north and south, and has two main tracks. North-bound trains take the east, and south-bound the west, track. The freight depot is north of the passenger depot, and a public road crosses the railroad at right angles between them. The former is on the east side, and the latter on the west. The train was north bound and on the east track. It reached Oneida about noon. Plaintiff was riding on the engine. As the train was slowing down, he alighted on the left or west side between the two tracks. It was then running about 6 or 8 miles an hour. The place at which he so alighted was 20 or 30 yards north of the road crossing and almost opposite or even with the freight depot. The caboose was about this place when the train came to a stop. His purpose in so alighting, according to his testimony, was to inspect the under parts of the cars as they passed him. The rules of the company made it a part of his duties to make such an inspection whenever he had a chance. There was evidence tending to show that he could do this, remount, and go back to the head of the train to handle signals whilst the conductor left the caboose and went to the freight depot for waybills and returned. In alighting he jumped or stepped on a loose piece of furnace slag the size of a man's two fists or a cocoanut. It or a similar piece was introduced in evidence as Exhibit No. 1. It 'kinder rolled' under him and pitched him head foremost. He fell on all fours, and his right foot, going under the cars, was crushed so that it had to be amputated.

The negligence complained of was permitting this piece of slag to be there. There were three trials. The first resulted in a verdict for the plaintiff for $3,000. This was set aside on the ground that it was against the weight of the evidence. The particular in which it was held to be so was as to plaintiff's purpose in alighting. It was held that the weight of the evidence was that his purpose was to go to a refreshment stand west of the passenger depot and get a bottle of beer, and hence that, when injured, he was not in the line of his duty.

The second was a mistrial. The jury could not agree. And the third resulted in a verdict for $5,000. The plaintiff remitted $2,000 of this to keep the court from setting it aside. This it would otherwise have done on the ground that the plaintiff had been guilty, as a matter of law, of contributory negligence, and the jury had not made sufficient allowance therefor.

The errors assigned and argued are the refusal of the court to give a peremptory instruction to find for the defendant, at the close of all the evidence, and its refusal to give a certain other instruction asked for by it.

The ground upon which it is claimed that defendant was entitled to a peremptory instruction is that, under the evidence, plaintiff had, as a matter of law, assumed the risk of defendant's negligence in relation to the piece of slag which was the cause of his injury. Judge Sanford in stating, in his charge to the jury, what was essential to make out the defense of assumption of risk, said:

'It is not essential * * * that the plaintiff knew of this particular piece of slag; it is sufficient if he knew that there was loose slag there on the ground in sizes and in such condition as to render the use of that ground there for the purpose of alighting from the train a dangerous use. If he knew there was loose slag there, and if he knew that would render the alighting from a train by a brakeman a dangerous thing to do, and if slag of this kind, dangerous slag-- if it was dangerous-- had been there so long, and he had such means and opportunity of seeing it that a reasonably prudent person would have understood the danger and appreciated the danger resulting from that situation, and he then continued to work for the railroad as a brakeman and used this yard in that way, then it has made out its defense, and there can be no recovery in this case.'

If this statement was correct, it would seem, as a matter of law, plaintiff had assumed such risk and defendant was entitled to the peremptory instruction; for plaintiff, in his testimony, admitted that he knew that there were loose pieces of slag where he alighted of sufficient size for it to be dangerous for him to step on one of them. He testified:

'In my service there, going about over the yards, from time to time, prior to the accident, I saw that loose slag was lying there between the tracks. It was perfectly plain for me or anybody else to see, and, in getting off of these trains at Oneida, I, as a rule and practice, at all times, avoided stepping on those loose pieces of slag lying there. No one would step on them on purpose. * * * I didn't know there were any pieces there as large as the one I stepped on. There were small pieces there. I knew it would be dangerous to step on any kind of a piece of slag, even if it was only one-half as large as Exhibit No. 1. I knew it would be dangerous and liable to throw me. They would not be as liable to throw me as this piece, but it would be dangerous just the same. * * * It would be dangerous to step on a piece of slag of any size.'

As to the size of the pieces of slag which he knew were there, his testimony was that they were a 'good deal smaller' than the exhibit and 'anywheres from the size of a hen egg, some smaller and some larger,' and, again, that they were of the 'size of a hen egg, or something like that, down to most any size, something like a grain of corn or a bird shot.' He further testified that, because of such knowledge on his part, he did not alight immediately from the engine, but stood on the step, within a foot of the ground, looking at the space between the tracks, and that, as he rode along, he saw loose slag and picked out a smooth place to step on, and after he had done so, he 'looked up at the fireman for some purpose and passed by this smooth place and then stepped off of the engine without again looking at the ground to see where' he 'was going to alight.'

His conduct in alighting without looking again was characterized by Judge Sanford as 'great contributory negligence,' and because of it the remission of the $2,000 was required; and he testified that the piece of slag on which he stepped was plainly observable at least 20 feet before it was reached.

Furthermore, Judge Sanford in his charge to the jury expressed the opinion that as a matter of fact plaintiff had assumed the risk, and this seemingly even though the law required that, in order to this, plaintiff must have known the exact condition of the yard. He said:

'Speaking a moment about the facts in this case, it is very hard for me to see that this man was not getting down to get that beer. It is hard for me to understand why he should have gotten down at this particular place unless he was getting down to get beer; and it looks to me, as a question of fact, as though the condition of that yard was known to him, and he assumed the risk in this case, under the weight of the proof in this case. That is the way it looks to me, but that is not a matter for me to determine.'

And in overruling the motion for new trial he thus expressed himself:

'In my opinion the weight of the evidence shows such a state of facts as makes the risk of injury to the plaintiff from the slag between the tracks of substantially the size and character as the piece on which he struck, one which the plaintiff assumed.'

When he acted on the motion, his conception of the law had changed from that expressed in his charge to the jury as above quoted. His then conception he thus expressed:

'I do not think that the knowledge of danger of a certain kind and degree can be said, as matter of law, to involve the assumption of a similar kind materially greater in degree.'

It was with this view of the law that he thus held that the weight of the evidence favored the position that plaintiff had assumed the risk.

He was led to overrule the motion so far as the question as to plaintiff's being in the line of his duty when he was injured by the consideration that this was the second time a jury had found in his favor as to this; and, so far as the question of assumption of risk, largely by the consideration that the last was the first of the three trials at which defendant had urged this defense. At the other two it had contested plaintiff's claim that it had been negligent in relation to the slag. He stated, in his opinion overruling the motion, that on those trials there had been 'great conflict in the evidence on the question as to the presence of loose slag in between the railway tracks in defendant's yard,' and that 'in neither of these trials was the defense of assumption of risk relied on. In the present trial, however, the defendant, in effect,...