Davis v. Crane

• Decision Date: 19 April 1926
• Docket Number: No. 7181.,7181.
• Citation: 12 F.2d 355
• Parties: DAVIS, Designated Agent, v. CRANE.
• Court: U.S. Court of Appeals — Eighth Circuit

12 F.2d 355 (1926)

DAVIS, Designated Agent, v. CRANE.

No. 7181.

Circuit Court of Appeals, Eighth Circuit.

April 19, 1926.

R. E. Blodgett, of St. Louis, Mo. (J. L. Howell, of St. Louis, Mo., on the brief), for plaintiff in error.

W. H. Douglass, of St. Louis, Mo., for defendant in error.

Before STONE, KENYON, and BOOTH, Circuit Judges.

KENYON, Circuit Judge.

This is the second appearance here of this case. It is an action brought by defendant in error (hereafter designated as plaintiff) against the Director General of Railroads while in charge of and operating the railroads of the St. Louis Merchants' Bridge Terminal Railway Company and Terminal Railroad Association of St. Louis (designated hereafter as defendant), claiming damages under the federal Employers' Liability Act on account of the death of plaintiff's husband (hereafter called decedent), alleged to have been caused by negligence of defendant while decedent was employed as a switchman by the St. Louis Merchants' Bridge Terminal Railway Company. The facts are quite fully set forth in the former opinion of this court (Crane v. Payne, 291 F. 551); hence need not be repeated in extenso here. It may be said, however, that decedent was killed in the daytime while he was acting as a brakeman in the line of his duty on the top of a freight car of a moving train in the terminal yards at St. Louis. The train, consisting of 45 cars, and engaged in interstate commerce, was proceeding under the viaduct or overhead bridge at Twenty-First street, which bridge would not clear a man on top of the cars. Decedent came in contact therewith, was knocked from the car, and killed. On the former trial of the case in the District Court a verdict was instructed for the defendant. Upon appeal to this court, that decision was reversed, this court holding that the question of negligence on the part of defendant, viz. the failure to have telltales to warn one approaching this bridge of the danger from want of clearance, and likewise the question of contributory negligence on the part of decedent, were questions of fact for the jury. The opinion did not refer to the defense of assumption of risk. The former decision holding that the questions of negligence of defendant and contributory negligence of decedent were for the jury is the law of the case on this hearing; the evidence being substantially the same upon both trials. Balch et al. v. Haas, 73 F. 974, 20 C. C. A. 151; Town of Fletcher v. Hickman, 208 F. 118, 125 C. C. A. 346; Meyer & Chapman State Bank v. First Nat. Bank of Cody (C. C. A.) 291 F. 42. These two questions therefore we lay aside. In the present case the jury returned a verdict for $25,000 in favor of the widow and children.

The pleadings in the former case were the same as here, and the defense of assumption of risk was pleaded by defendant and argued in the briefs of both parties. While not referred to in the opinion of the court, yet the question of decedent's knowledge and appreciation of the danger was evidently before and in the mind of the court, as the test set forth in the opinion from Chesapeake & Ohio Railway Co. v. De Atley, 241 U. S. 310, 36 S. Ct. 564, 60 L. Ed. 1016, as the governing rule to be applied to the facts is as applicable to the defense of assumption of risk now relied on as it is to the claim of contributory negligence. However, as both parties have presented the case on the theory that this court did not in its former opinion pass on the question of assumption of risk, we accept the situation so presented.

The issue here is narrowed to one question, viz.: Should the trial court have held as a matter of law that decedent assumed the risk arising from the negligence of defendant in failing to provide warning as to the want of clearance of the Twenty-First street bridge? The jury must have found negligence on defendant's part in failing to maintain telltales; that being the only question as to defendant's negligence submitted to it. This action is brought under the federal Employers' Liability Act (Comp. St. §§ 8657-8665), which provides for the recovery of damages to be paid for the benefit of the surviving widow or husband and children in case of the death of an employé engaged in interstate commerce, where such death results from the negligence of the officers, agents, or employés of the carrier by reason of any defect or insufficiency due to its negligence in its appliances, track, roadbed, works, etc. While under that act contributory negligence is not a defense, but damages are to be reduced in proportion to the negligence, such assumption of risk as is here insisted upon, no statute intended for the safety of employés being involved, is, if established, a defense. Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Seaboard Air Line Ry. v. Horton, 239 U. S. 595, 36 S. Ct. 180, 60 L. Ed. 458; Jacobs v. Southern Ry. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970; Pryor v. Williams, 254 U. S. 43, 41 S. Ct. 36, 65 L. Ed. 120.

We are therefore called upon to deal entirely with the doctrine of assumption of risk, which is an affirmative defense; the burden of proof to establish it being upon defendant. Kanawha Ry. v. Kerse, 239 U. S. 576, 36 S. Ct. 174, 60 L. Ed. 448. The law applicable thereto is well settled, although difficulties frequently arise in applying the same to the facts. It is the duty of the employer to use due care in providing the employé a reasonably safe place to work. An employé assumes the ordinary risks incident to the business in which he engages, but does not assume extraordinary risks arising from the employer's negligence unless and until he is aware of the same and appreciates the danger therefrom, or unless, under the circumstances, they are so plainly observable that he is presumed to know them and to appreciate the danger.

In Gila Valley, Globe & Northern Ry. Co. v. Hall, 232 U. S. 94, 101-102, 34 S. Ct. 229, 231 (58 L. Ed. 521), the Supreme Court said: "An employé assumes the risk of dangers normally incident to the occupation in which he voluntarily engages, so far as these are not attributable to the employer's negligence. But the employé has a right to assume that his employer has exercised proper care with respect to providing a safe place of work, and suitable and safe appliances for the work, and is not to be treated as assuming the risk arising from a defect that is attributable to the employer's negligence, until the employé becomes aware of such defect, or unless it is so plainly observable that he may be presumed to have known of it. Moreover, in order to charge an employé with the assumption of a risk attributable to a defect due to the employer's negligence, it must appear, not only that he knew (or is presumed to have known) of the defect, but that he knew it endangered his safety; or else such danger must have been so obvious that an ordinarily prudent person under the circumstances would have appreciated it."

This court said, in United States Smelting Co. v. Parry, 166 F. 407, 409, 410, 92 C. C. A. 159, 161: "It is the duty of a master to exercise reasonable care to provide a reasonably safe working place for his servant, and the latter is entitled to act upon the assumption that that duty has been performed, unless the contrary be known to him, or be so patent as to be readily observed by him. He is not required to make an investigation or inspection to ascertain whether or not that duty has been performed, but only to have due regard for what he actually knows and for what is so patent as to be readily observed by him, by the reasonable use of his senses, having in view his age, intelligence, and experience." See, also (this circuit) Chicago, M. & St. P. Ry. Co. v. Donovan, 160 F. 826, 87 C. C. A. 600; Chicago, B. & Q. R. Co. v. Shalstrom, 195 F. 725, 115 C. C. A. 515, 45 L. R. A. (N. S.) 387; Republic Elevator Co. v. Lund, 196 F. 745, 116 C. C. A. 373, 45 L. R. A. (N. S.) 707; Kaemmerling v. Athletic Mining & Smelting Co. (C. C. A.) 2 F.(2d) 574; Atchison, T. & S. F. Ry. Co. v. Wyer (C. C. A.) 8 F.(2d) 30.

One of the most concise statements on the subject is that in Director General of Railroads v. Templin (Third Circuit) 268 F. 483, 485: "It is recognized that under the federal Employers' Liability Act an employé assumes the risks normally and necessarily incident to his employment, and also the extraordinary risks, or risks caused by his master's negligence; yet he assumes the latter only when they are obvious or fully known by him and are such as would under the circumstances be seen and appreciated by an ordinarily prudent person." See, also, Chicago & E. R. Co. v. Ponn, 191 F. 682, 112 C. C. A. 228; Cincinnati, N. O. & T. P. Ry. Co. v. Thompson, 236 F. 1, 149 C. C. A. 211; Philadelphia & R. Ry. Co. v. Marland, 239 F. 1, 152 C. C. A. 51; Taber v. Davis (C. C. A.) 280 F. 612; Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665, 18 S. Ct. 777, 42 L. Ed. 1188; Choctaw, Oklahoma & Gulf R. Co. v. McDade, 191 U. S. 64, 24 S. Ct. 24, 48 L. Ed. 96; Schlemmer v. Buffalo R. & P. R. Co., 220 U. S. 590, 31 S. Ct. 561, 55 L. Ed. 596; Seaboard Air Line v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Ches. & Ohio Ry. v. De Atley, 241 U. S. 310, 36 S. Ct. 564, 60 L. Ed. 1016; Ches. & Ohio Ry. v. Proffitt, 241 U. S. 462, 36 S. Ct. 620, 60 L. Ed. 1102; Boldt v. Pa. R. Co., 245 U. S. 441, 38 S. Ct. 139, 62 L. Ed. 385.

Applying the test of the well-established doctrines announced in these cases to the present controversy, does the evidence show that decedent knew the Twenty-First street bridge had a low clearance, and that there were no telltales to warn a person on top of cars about to pass thereunder of the danger, or that the danger from low clearance and lack of telltales was so plainly obvious that under the circumstances as a reasonably prudent person he should...