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

• Decision Date: 15 June 1917
• Docket Number: 2888.
• Citation: 243 F. 76
• Parties: CINCINNATI, N.O. & T.P. RY. CO. v. HALL.
• Court: U.S. Court of Appeals — Sixth Circuit

243 F. 76

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

No. 2888.

United States Court of Appeals, Sixth Circuit.

June 15, 1917

Preparatory to the substitution of a new bridge for an old one over Soddy creek, in Tennessee, on the main line of plaintiff in error herein called defendant, the defendant caused a cut to be made in the fill approaching the bridge and immediately next to a stone abutment at the south end of the bridge, 24 feet long, 7 1/2 feet high, 3 1/2 feet wide; those figures measuring a transverse section of the fill at that point. The cut was to make a place for a wooden bent, which, with another on the north side of the abutment, was to hold up the track and bridge while the abutment was removed and other permanent structure built in its place.

Hood an employe, was, with others, engaged on the cut, which was supervised immediately by a foreman. There was also a foreman of the entire work on the bridge and both approaches, and all the work and men engaged upon it were under the supervision of the defendant's bridge builder, of long experience. When the men were set to work at the cut, a foreman marked off the places where they were to work, showed them how deep to go, and how much to take out.

Beginning one afternoon, the men had cut in on either side about 6 feet and to the bottom. As the work proceeded, the face of the fill was shored up by direction of the supervisor; planks being placed uprightly against the face of the cut braced by crosspieces running from the face of the planks to the face of the abutment. Who did the work of shoring does not appear. The supervisor said it was done 'To protect the stringers, we always should in doing that sort of work, that makes it solid down there, so it can be used without danger. * * * We shored it up on account of the soft and loose dirt. It was liable to cave in.'

To the end that traffic might not be interrupted, strong stringers were introduced under the ties to hold up the tracks; the ends on one side resting on the abutment and on the other on the roadbed itself, or upon a heavy cross-sill, as the jury might determine from conflicting evidence. The supervisor testified, and it is clear, that stringers resting on the fill itself would make the work more dangerous to those working in the cut.

The fill was composed of sand and some clay for about half its height from the bottom; above that some sand and clay, with many round and smooth boulders running in size from large pebbles to 14 inches in diameter. The top of the fill was ballasted with slag of perhaps a foot and a half in thickness, having a tendency to form into masses. The supervisor knew the character of the fill. Whether the ends of the stringers rested on a sill or on the top of the fill the ties must have been lifted out of their positions in the slag, thus leaving transverse depressions and heavy ridges in the slag. One stringer was under the middle of the track, and the other two at the sides, though how far apart does not certainly appear.

In the early afternoon of the second day, the men had cut through from side to side and down from the top about 6 feet, leaving to be removed but about 1 1/2 to 2 feet at the bottom immediately under the track and about 4 feet long on each side and sloping down from the middle outwardly. How far the shoring had been completed does not certainly appear, but there was no shoring under the track at the deepest part of the cut and where it was needed the most. An employe working with Hood (an intelligent witness, so far as one can judge from the record) made the unshored distance 10 feet. The supervisor first said it was 4 feet, and, after making some calculations involving the width of the stringers and the distance between them, calculated the distance to be 6 1/2 feet. The jury were at liberty to find the distance 10 feet. When questioned on the assumption that the distance was 10 feet, the supervisor said: 'It would be an unusual and dangerous method to do the work, if there should be as much as 10 or 12 feet left under the track unshored. It is not the usual method to leave so long a space as that unshored. ' Trains passed over from time to time, the last at one-half to three-quarters of an hour before the accident happened. Hood was at work under the track when the fill caved in. He was thrown against the abutment and fatally injured. Sand and loose earth covered his legs and the lower part of his body, while his chest and head were crushed in by masses of slag, one said to be as large as a flour barrel.

In the debris was found a rotten log or tie about 3 1/2 feet long, which had been imbedded in the sand and boulders about 3 feet from the top of the fill and the same distance from the face of the cut. The material above the log fell. It may be that this piece of decayed wood, disturbed by the jarring of the trains, precipitated the fall of the sand and boulders in which it was, and thus caused the fall of the then overhanging slag. It may be the log had nothing to do with it; but the fall of all the debris was practically simultaneous. There was some testimony tending to show warning to the workmen to look out for cracks and for falling earth; but the burden of the warning was to get out from under when trains were passing, lest blocks, brake beams, etc., might fall. One witness testified the men were told they could see when the earth began to crumble.

If the shoring had been carried under the track, there is no reason to think an accident would have happened. The break in the face of the fill did not go down to the bottom, but only about 3 feet from the top, and it was the opinion of the supervisor that the work Hood was immediately doing did not contribute to the fall. The supervisor left the work on a train about one-half to three-quarters of an hour before the accident. He said the train had not apparently affected the top of the embankment, and he stood at the end to see whether the stringers were sufficient to hold up the roadbed. He made no inspection of the face of the cut, and was unwilling to say that the passing train had nothing to do with the fall. Neither of the foremen had been present for perhaps three-quarters of an hour before the accident.

Hood was 27 years old, industrious, of good habits, and was a 'good husband,' earning $1.65 a day, which he applied to the support of his family. The action was brought by his administrator under the Employers' Liability Act for the benefit of his widow (23 years of age) and two children (one post-humous), who at the time the action was brought were, respectively, 4 years and 16 months old. The verdict was for plaintiff for $9,750, of which the court required a remittitur of $3,000.

Among other things, the court charged the jury:

'There is, generally speaking, a duty on a man who employs laborers to use reasonable care to make the place in which they are to work safe. He does not insure their safety. He is not responsible for accidents that happen to them unless he fails to take reasonable care for their protection. The care which he must take is such as a reasonably prudent employer would take under the circumstances, having due regard for the safety of his employes. It is the ordinary care of a reasonably prudent man; no more, and no less. The question is to be determined by the jury in the light of all the circumstances.

'Now, ordinarily, where men are laborers, engaged in the work of excavation, considering the changes that take place in the place where they work, this duty of the master to furnish a safe place to work is held to have no application on the idea that the men themselves are making their place of work and that the conditions of the working place are constantly changing as a result of their own labor, and under such circumstances the master cannot be held, cannot be expected to exercise a constant supervision over the safety of the place where the place is changing from moment to moment as a consequence of their own labor.

'In this particular case, however, there may be another element which enters into the question as to the safety of this working place. This was not an excavation in the nature of an ordinary ditch, but it was an excavation which was being made under a railroad track where trains were run over it from time to time, and the excavation on one side was in the embankment which was a part of the fill on which the line of the railroad rests, and the railroad was from time to time running its trains over this fill on this track, and the danger of the place, the danger incident to the digging which the men were doing, may have been materially increased by the fact that trains were run over this embankment, which tended to loosen the earth and make the place more dangerous than it would have been, if they were at work in an ordinary excavation in another place. And the plaintiff maintains that this doctrine of the nonliability of the master as to making the place safe does not apply, and that he must use reasonable care under this condition to see that the place in which his men were at work was made safe; that is, he must use ordinary care of a reasonably prudent man.

'Now, I charge you that that is the law, and that if you find from the greater weight of this evidence that the condition of this place as to safety depended, not only on the work that the men were doing in digging there, but also depended materially upon the fact that trains were from time to time run over this fill, then there would be a duty on the master; and if the danger of the place was materially increased by the fact that trains were being run over the fill, then the master must use the care of an ordinarily prudent man in reference to making the place safe in view of all those

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