Davis v. Scroggins

• Decision Date: 29 November 1922
• Docket Number: 3957.
• Parties: DAVIS, Agent and Director General of Railroads, v. SCROGGINS.
• Court: U.S. Court of Appeals — Fifth Circuit

284 F. 760

DAVIS, Agent and Director General of Railroads, v. SCROGGINS.

No. 3957.

United States Court of Appeals, Fifth Circuit.

November 29, 1922

Ras Young, of Longview, Tex., for plaintiff in error.

Cone Johnson and J. M. Edwards, both of Tyler, Tex., for defendant in error.

Before WALKER, BRYAN, and KING, Circuit Judges.

WALKER Circuit Judge.

This was an action by the defendant in error (herein called plaintiff) to recover damages for personal injuries resulting from his foot being caught in a hole in the floor or platform of a loading or transfer shed at Longview Junction, Tex which belonged to and was used in connection with a railroad controlled and operated by the plaintiff in error (herein called the defendant); such injuries being attributed to alleged negligence of the defendant in permitting such floor or platform to remain in the unsafe condition resulting from the existence of such hole.

Evidence adduced tended to prove the following: Plaintiff was an employee of the defendant, being general car foreman in the defendant's yards at Longview Junction. His duties included the inspection of cars, including those containing interstate shipments of freight, and seeing that bad order cars were properly repaired so that they could be moved out. On February 12, 1920, while plaintiff was engaged in performing those duties, looking for bad order and delayed cars, some of which were then used in interstate commerce indicated on a list which had been given him by defendant's assistant agent at that place, he went on the platform of the loading or transfer shed, on each side of which platform was a track having a long string of cars on it, some of the cars on such tracks being on the list mentioned. That platform was about 16 feet wide and about 560 feet long, and was constructed for use in transferring freight by trucks from one car to another. The usual and proper place for the plaintiff to be when looking for and inspecting cars was anywhere in the yards that any of such cars might be. It was customary for him, when engaged in inspecting cars on the tracks on either side of the platform to use the platform as a passageway, so that the cars on either side could be inspected. While plaintiff was walking along the platform, looking on both sides thereof for cars noted on the list he was using, the heel of his right foot went into a hole in the platform, with the result that he received the injuries complained of. That hole was about 3 or 3 1/2 inches wide, and between 12 and 18 inches long. It was the result of the breaking, by a truck or trucks on which heavy freight was moved, of one of the 2x6 or 2x8 planks with which the floor was made. That hole had existed for about two years. During part of that time a piece of plank was nailed over it, that having been done by an employee who was engaged in transferring freight over the platform with a truck. That piece of plank had been worn or knocked off by trucks passing over it, and the hole had been open for more than a month before the plaintiff was hurt. Some of the planks around the hole were decayed and worn from use. Except where that hole was the platform was in pretty good shape. The testimony of the plaintiff included the following:

'No; I did not know of the hole in the platform and never had any notice that any hole was in the platform, nor did I know of the condition of the planks at and surrounding the hole prior to the time when my foot caught in it. My attention had never in any manner been called to the fact of the hole in the platform or as to the condition of the planks or timbers of the platform at that place. I had been on the said platform many times before this time in question. I do not remember just when before my injury I was on that platform the last time. I had never been on that particular part of the platform where I was injured, that I remember, before the time in question.'

Exceptions were reserved to the refusal of a requested charge instructing the jury to return a verdict for the defendant, and to the refusal to give the following requested charges:

'No. 3. You are instructed that, if you find from the evidence that the plaintiff, while walking along on the platform, knew that the hole was in said platform and the dangers arising therefrom, or that, in the exercise of ordinary care for his own safety, he should have known of the hole in the platform and the dangers arising therefrom, he would assume the risk of injury by stepping in said hole, and, if you so find, you will find for the defendant.'

'No. 4. You are instructed that, if you find from the evidence that the hole in the platform was open and obvious, and that the plaintiff knew the same was there and knew the dangers arising therefrom, or that, in the exercise of ordinary care for his own safety, the hole was so obvious to his sense of sight that he would be presumed to know that it was there, and the dangers to arise therefrom, he would assume the risk of injury by stepping in said hole, and if you so find you will return a verdict for the defendant.'

The defendant also excepted to the following part of the charge given by the court:

'The plaintiff assumed the risk and dangers which were ordinarily incident to his employment and to the work in which he was engaged. But he did not assume any risk or danger arising from the negligence, if any, of the defendant, unless he knew of the same, or must necessarily have known of the same in the ordinary performance of his duties, while exercising ordinary care and circumspection for his own safety. The plaintiff did not assume the risk or the danger arising from

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