Draper v. Louisville & N. R. Co.

• Decision Date: 28 April 1933
• Citation: 66 S.W.2d 1003
• Parties: DRAPER v. LOUISVILLE & N. R. CO.
• Court: Tennessee Supreme Court

Page 1003

66 S.W.2d 1003

DRAPER v. LOUISVILLE & N. R. CO.

Court of Appeals of Tennessee, Western Section.

April 28, 1933.

Certiorari Overruled by Supreme Court December 9, 1933.

Appeal in Error from Circuit Court, Henry County; W. W. Bond, Judge.

Suit by George Draper against the Louisville & Nashville Railroad Company. To review a judgment in favor of the defendant, the plaintiff appeals in error.

Judgment affirmed.

R. H. Hudson, of Paris, for plaintiff in error.

R. H. Rhodes, of Paris, for defendant in error.

ANDERSON, Judge.

This is a suit under the provisions of the Federal Employers' Liability Act (45 USCA §§ 51-59), instituted in the circuit court of Henry county by the plaintiff in error, George Draper, hereinafter referred to as the plaintiff, against the defendant in error, Louisville & Nashville Railroad Company, hereinafter referred to as the defendant, seeking to recover damages for personal injuries alleged to have been sustained by the plaintiff, while in the employ of the defendant, as a machinist helper. The plaintiff's injuries are alleged to have resulted from the negligence of the defendant in failing to provide plaintiff a safe place to work and from the negligence of plaintiff's coemployees in the performance of the work in which they and plaintiff were jointly engaged at the time of the accident.

On the motion of the defendant, made at the conclusion of all the evidence, the trial judge directed the jury to return a verdict for the defendant; and, after his motion for a new trial had been overruled, plaintiff appealed in error to this court.

Two errors are assigned. Both are predicated on the action of the trial judge in directing a judgment for the defendant and will be disposed of together.

The grounds relied upon by the defendant in this court to sustain the action of the trial judge are that the undisputed evidence shows that (1) plaintiff's injuries were due to his own overexertion or strain while engaged in the performance of his duties, and not to any negligence on the part of the defendant or its employees; (2) that, if plaintiff's injuries are attributable to the negligence of the defendant or its employees, such negligence and the dangers arising therefrom were open and obvious to the plaintiff, fully appreciated by him, and hence he assumed the risk thereof.

The suit having been brought under the Federal Employers' Liability Act (45 USCA §§ 51-59), the case is governed by the provisions of that act as construed by the courts of the United States and the principles of common law as applied by those courts. Toledo, St. L. & W. R. Co. v. Allen, 276 U. S. 165, 48 S. Ct. 215, 72 L. Ed. 513.

Under the Federal Employers' Liability Act (45 USCA §§ 51-59), the right of an injured employee to recover damages from his employer cannot be defeated by showing that the employee was guilty of contributory negligence. Such negligence can only be considered by the jury in diminution of the damages. However, except as to violations of federal statutes enacted for the safety of employees, the defense of assumption of risk as applied at common law is available to the employer in actions under this act, and, when established, is a complete bar to a recovery. Seaboard Air Line Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 639, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B, 475; Jacobs v. So. R. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970.

The distinction between assumption of risk and contributory negligence, not always easy to follow, is recognized by the federal courts in applying the provisions of the Federal Employers' Liability Act. As construed by the Supreme Court of the United States, an employee assumes the ordinary risks and hazards of his occupation and also those defects and risks which are known to him, or are plainly observable, although due to the master's negligence. Contributory negligence, on the other hand, is the omission of the employee to use those precautions for his own safety which ordinary prudence requires. Schlemmer v. Buffalo, R. & P. R. Co., 220 U. S. 590, 31 S. Ct. 561, 55 L. Ed. 596.

The distinction has been described by the Supreme Court of the United States in the following language:

"And, taking sections 3 and 4 together, there is no doubt that Congress recognized the distinction between contributory negligence and assumption of risk; for, while it is declared that neither of these shall avail the carrier in cases where the violation of a statute has contributed to the injury or death of the employee, there is, with respect to cases not in this category, a limitation upon the effect that is to be given to contributory negligence, while no corresponding limitation is imposed upon the defense of assumption of risk — perhaps none was deemed feasible. The distinction, although simple is sometimes overlooked. Contributory negligence involves the notion of some fault or breach of duty on the part of the employee; and since it is ordinarily his duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for his safety as ordinarily prudent employees in similar circumstances would use. On the other hand, the assumption of risk, even though the risk be obvious, may be free from any suggestion of fault or negligence on the part of the employee." Seaboard Air Line Ry. v. Horton, supra.

The risks assumed by an employee are of two kinds, ordinary and extraordinary. The ordinary risks are those that are normally incident to an occupation in which an employee voluntarily engaged. An employee is conclusively presumed to have knowledge of such risks and assumes the risk of injuries arising therefrom.

Such ordinary risks are assumed by an employee whether he is actually aware of them or not; for the dangers and risks that are normally or necessarily incident to his occupation are presumably taken into account in fixing his rate of wages. Chicago, R. I. & P. R. Co. v. Ward, 252 U. S. 18, 40 S. Ct. 275, 16 L. Ed. 430; Chicago & N. W. R. Co. v. Bower, 241 U. S. 470, 36 S. Ct. 624, 60 L. Ed. 1107; Chesapeake & O. R. Co. v. De Atley, 241 U. S. 316, 36 S. Ct. 564, 60 L. Ed. 1016; Jacobs v. So. R. Co., 241 U. S. 229, 36 S. Ct. 588, 60 L. Ed. 970.

Among extraordinary risks are those arising out of the failure of the employer to exercise due care with respect to providing a safe place to work and suitable and safe appliances for the work. Such risks are assumed by the employee only when he has knowledge of them and dangers arising therefrom, or when the risks and the dangers are so obvious that an ordinarily prudent person under similar circumstances would have known the risk and appreciated the danger arising therefrom. Chicago, R. I. & P. R. Co. v. Ward, supra; Montgomery v. Baltimore & O. R. Co. (C. C. A.) 22 F.(2d) 359; Voochees v. Central R. Co. of N. J. (C. C. A.) 14 F.(2d) 899; Davis v. Crane (C. C. A.) 12 F.(2d) 355; Central of Ga. R. Co. v. Davis (C. C. A.) 7 F.(2d) 269; Erie R. Co. v. Regan (C. C. A.) 297 F. 435; Davis v. Scroggins (C. C. A.) 284 F. 760; Hines v. Logan (C. C. A.) 269 F. 105; Delaware, L. & W. Co. v. Busse (C. C. A.) 263 F. 516.

In cases governed by the Federal Employers' Liability Act (45 USCA §§ 51-59) a coemployee's negligence, when it is the ground of action, stands in the same relationship as the employer's negligence upon the question of whether or not the employee is deemed to have assumed the risk, notwithstanding the provisions of the act abrogating the fellow servant's rule of common law. Chesapeake & O. R. Co. v. De Atley, supra; Erie R. Co. v. Linnekogel (C. C. A.) 248 F. 389.

If an employee becomes aware of the risk and dangers arising from the negligent act of a fellow servant, or if the risk and dangers arising therefrom are so obvious that an ordinarily prudent person under similar circumstances would have observed the one and appreciated the other, then, under the federal statute as construed by the United States courts, the employee assumes the risk arising from such negligent act of his coemployee. Chicago & N. W. R. Co. v. Bower, 241 U. S. 476, 36 S. Ct. 624, 60 L. Ed. 1107; Southern R. Co. v. Gray, 241 U. S. 333, 36 S. Ct. 558, 60 L. Ed. 1030; Louisville & N. R. Co. v. Stewart, 241 U. S. 261, 36 S. Ct. 586, 60 L. Ed. 989.

With these principles of law in mind, it becomes necessary to examine the facts disclosed by the record. In doing this, since the question under consideration is the correctness of the action of the trial judge in directing the verdict in favor of the defendant, that view of the evidence most favorable to the plaintiff's case must be taken.

The plaintiff is fifty-five years of age. He had been in the employ of the defendant for twenty-five years as a helper in the roundhouse in defendant's shops in Paris, Tenn. For ten years he had been a member of what is known in the record as the "spring gang." This gang usually consisted of three men whose duty it was to remove defective springs from the engines of defendant and replace them with new ones. The work was done in the roundhouse of defendant. The method employed was to raise the engine by means of jacks and remove the defective spring which rested on a saddle on the driving box inside of the driving wheel. After the spring was removed, the new spring was raised to the rim or tire of the engine wheel and rested thereon. One of the men then stationed himself upon the axle and let the spring down onto its resting place inside the wheel. The main driving springs, one of which was upon the occasion involved in this case to be changed, consist of thirteen leaves, four inches wide, ranging in length from six to thirty-four inches. The leaves are held together by steel pins and a spring weighs about 220 pounds. When in place, it stands from five feet six inches to five feet nine inches from the floor or ground depending upon the thickness of the...