Cudahy Packing Co. v. Luyben

• Decision Date: 25 January 1926
• Docket Number: No. 6932.,6932.
• Citation: 9 F.2d 32
• Parties: CUDAHY PACKING CO. v. LUYBEN.
• Court: U.S. Court of Appeals — Eighth Circuit

9 F.2d 32 (1925)

CUDAHY PACKING CO. v. LUYBEN.

No. 6932.

Circuit Court of Appeals, Eighth Circuit.

November 13, 1925.

Rehearing Denied January 25, 1926.

Yale C. Holland, of Omaha, Neb. (J. A. C. Kennedy, George L. De Lacy, Charles F. McLaughlin, and Philip E. Horan, all of Omaha, Neb., on the brief), for plaintiff in error.

Wymer Dressler, of Omaha, Neb. (Robert D. Neely and Arthur C. Thomsen, both of Omaha, Neb., on the brief), for defendant in error.

Before STONE and VAN VALKENBURGH, Circuit Judges, and PHILLIPS, District Judge.

VAN VALKENBURGH, Circuit Judge.

Plaintiff in error has a packing house in South Omaha, Neb., and in connection therewith operates a shed, into which cars are switched for the purpose of being loaded with the products of the packing house. When so loaded, they are withdrawn for purposes of transportation by switching crews in the employ of the Union Stockyards Company at South Omaha. On one side of the interior of this shed is a provision-loading dock; on the other, a beef-loading dock. Two main tracks traverse this shed, which is more than 464 feet in length. On one side, along the provision-loading dock, there are windows; on the side of the beef-loading dock there are none. Near the entrance of the shed there is a red incandescent light. Beginning at a point within the shed, about 25 feet from its entrance, what is known as a car-icing walk or runway, traverses the shed lengthwise for a distance of about 464 feet. This runway is placed there for convenience in icing cars upon the loading tracks. It extends over what may be termed the beef track to a point about midway between the edge of a freight car, passing along and under it, and the running board, which is located along the center of the roof of the car. At the point of its beginning this runway stands 4½ feet above the roof of such car, and gradually declines until at the farther end of the shed it is but 2½ feet above a car roof.

Defendant in error was a switchman in the employ of the Union Stockyards Company at South Omaha. He had been such since March 1, 1922. About 6:30 p. m., April 11, 1922, as such switchman, in attendance upon the switch engine and cars thereto attached, he entered this shed, with the switching crew of which he was a member, as he expresses it, "to pull the beef house"; that is, to couple and pull out the cars loaded with beef upon the beef track. Others of the crew were at the rear end of the shed, and defendant in error occupied a position but one or two cars removed from the engine, for the purpose of relaying signals to the engineer. The switching train entered the shed from the east. The cars attached to the switch engine were backed into the shed; the engine being at the easternmost point of the train. Defendant in error received a signal from the rear, which he interpreted to mean that the cars on the beef track were all coupled, whereupon the signal to pull out was given. Before the train had proceeded a great distance from the shed, defendant in error perceived that the other members of the switching crew were not with it. This indicated, either that all the cars had not been coupled, or that some had become detached. It was necessary, therefore, to return to the shed to pick up those that had been left.

Luyben took his place at first, as he says, upon either the third or fourth car from the engine; but, as the train entered the shed, backing as before, it became necessary for him to move toward the engine, in order that his signals might be seen by the engineer. The track entered the shed on a curve, and this made it necessary for him to leave the running board in the center of the car, and to take a position toward the side of the car roof, from which point his signals could be seen from the engine. He was thus compelled to divide his attention between receiving signals from within the shed and relaying them to the engineer. There was no artificial light within the shed, unless, perhaps, the red incandescent light at the entrance, about which there is some dispute, and the signals were necessarily conveyed by lanterns. While thus occupied, defendant in error was struck by some object, which he alleges was the caricing walk, was thrown between the cars upon a drawbar, and suffered severe injuries, mainly to his back, which, from the testimony, may fairly be taken to be permanent.

As negligence on the part of plaintiff in error, the petition in substance charged that the runway in question was carelessly, negligently, and dangerously constructed, placed, and maintained; that the shed was dark, and that a suitable light was not provided, in view of the dangerous construction within the shed. By its answer plaintiff in error pleaded contributory negligence and assumption of risk, and charged negligence, if any, on the part of the stockyards company, employer of defendant in error, with whom the latter had made a settlement in part, reserving his right to proceed further against the Cudahy Company. Upon trial the jury returned a verdict for defendant in error, and assessed his damages at $18,233. The specifications of error relied upon for reversal are thus stated in the brief:

"First, because there was no evidence that the packing company operated the shed and runway; second, because the packing company owed the plaintiff only the duty not wantonly to injure him, which duty was performed; third, because it is wholly conjectural whether plaintiff fell from the car by reason of being hit by the runway, or for some other reason; fourth, because it was daylight, both inside and outside the shed, and no negligence could be predicated upon the proposition of insufficient lighting; fifth, because the runway was neither negligently located nor negligently maintained; sixth, because the evidence conclusively established that plaintiff assumed the risk whatever danger there was; and seventh, because the evidence conclusively established that plaintiff was guilty of contributory negligence."

At the trial, counsel for plaintiff in error insisted that there was no evidence that the packing company owned the shed and runway. This is clearly beside the point. The evidence is conclusive that the packing company operated this shed and runway, and tendered it, equipped as it was, for cars operated by the stockyards company and its employees to enter in due course of switching operations for the removal of the packing company's products. In such case it is unimportant in whom the technical legal title or ownership may be lodged.

It is urged that the packing company owed the plaintiff only the duty not wantonly to injure him. This involves a definition of terms. It is clearly negligence on the part of any one, whether stranger, invitor, or employer, with knowledge of what is to be done, to maintain a place which is not reasonably safe, in view of the activities and operations therein mutually contemplated.

It is next contended that it is wholly conjectural whether plainti...