Delaney v. Tampa Northern R. Co.

• Decision Date: 17 December 1924
• Docket Number: No. 1036.,1036.
• Citation: 2 F.2d 734
• Parties: DELANEY v. TAMPA NORTHERN R. CO.
• Court: U.S. District Court — Southern District of Florida

2 F.2d 734 (1924)

DELANEY v. TAMPA NORTHERN R. CO.

No. 1036.

District Court, S. D. Florida.

December 17, 1924.

Hilton S. Hampton, of Tampa, Fla., for plaintiff.

Knight, Thompson & Turner, of Tampa, Fla., for defendant.

JONES, District Judge.

This is an action to recover damages for personal injuries sustained by the plaintiff while in the service of the defendant railroad company, engaged in interstate commerce. The suit is brought under the provisions of the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65, and Act April 5, 1910, c. 143, 36 Stat. 291 Comp. St. §§ 8657-8665), and is based upon an alleged violation of the Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531; Act March 2, 1903, c. 976, 32 Stat. 943 Comp. St. §§ 8605-8612; Act April 14, 1910, c. 160, 36 Stat. 298 Comp. St. §§ 8617-8623).

The first count of the declaration, after setting out that the defendant is the owner of and was at the time of the alleged injury operating a railway engaged in interstate commerce, alleges that plaintiff was employed by the defendant as brakeman on a mixed train; that at the time and place shown in the declaration the plaintiff was required, in the discharge of his duties as such brakeman, preparatory to uncoupling a certain car in the train, to "shut off the air" on said car; that in attempting to do so in the usual manner plaintiff found an air valve upon said car "defective and out of repair," making it impossible to "shut off the air" by means of said valve, whereupon plaintiff was compelled to go between the cars to effect his purpose, and that while between said cars the train was negligently moved forward, and the foot of the plaintiff caught by the wheels and injured. The second count is the same as the first, except it alleges that the air valve in question "stuck and refused to work."

To each count of the declaration the defendant has filed a plea of the general issue and two special pleas; one setting up contributory negligence, and the other an assumption of risk. The case is now before me upon demurrer of the plaintiff to the two special pleas, the grounds for demurrer being that under the acts of Congress neither contributory negligence nor assumption of risk is a defense to such a cause of action as is stated in the declaration. The declaration charges the defendant with operating a car in interstate traffic, upon which car the coupling appliances were not in good working condition, and alleges the injury complained of resulted from this cause. The portions of the acts applicable in this case are as follows:

Section 8 of the Safety Appliance Act of March 2, 1893 (27 Stat. 532): "Any employee of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge."

Section 4 of the Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 66): "In any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employees, such employee shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."

Section 3 of said Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 66): "In all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employee, or where such injuries have resulted in his death, the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee: Provided, that no such employee who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employees contributed to the injury or death of such employee."

Taking up, first, the question of whether or not assumption of risk is a permissible defense in this case, it will be seen from the foregoing sections of the acts of Congress that it is expressly barred...