Erie R. Co. v. Schomer

• Decision Date: 13 July 1909
• Docket Number: 1,935.
• Citation: 171 F. 798
• Parties: ERIE R. CO. v. SCHOMER.
• Court: U.S. Court of Appeals — Sixth Circuit

171 F. 798

ERIE R. CO. v. SCHOMER.

No. 1,935.

United States Court of Appeals, Sixth Circuit.

July 13, 1909

[Copyrighted Material Omitted]

W. E Cushing, for plaintiff in error.

G. M Skiles and R. B. Newcomb, for defendant in error.

Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges.

LURTON Circuit Judge.

Action for personal injuries sustained while in the service of the Erie Railroad Company as a yard switchman. Jury, and judgment for plaintiff. There was evidence tending to show that plaintiff was one of a switching crew engaged in the switching of two loaded coal cars from the track upon a coal tipple to an adjacent surface track. It was a dark night. Plaintiff, though an experienced switchman, was not familiar with the tipple or tracks adjacent. He was directed to take two cars down the tipple track, 'throw the switch, and put them on the middle rails. ' He gave the necessary signal for backing, and then mounted on the forward corner step or stirrup on the forward car, on the fireman's side of the engine. What happened, as told by the plaintiff, was as follows:

'(2) Describe what happened. A. As soon as I got on the car was sort of backing up, and as soon as I got on the stirrup I seen I wasn't going up the right incline. I was going on what the call the surface track, and tried to swing the fireman down; and the cars didn't slack up, and they didn't seem to take my signal, and I though maybe the fireman wasn't able to see me, or wasn't there. So I swung around on the ladder end of the car and took hold of the top, or the next to the top, round with my left hand, and put my right foot over on the deadwood, and reached over with my right hand to take hold of the grab iron, and as soon as I did I let go with my left hand and I lost my balance. Something gave way with me, and I fell over backward, and that is the last I remember. Q. Do you remember what gave way? A. I suppose the handhold gave way with me. I don't know; only what I heard since. Q. Where was your lantern? A. On my left arm. Q. Where were you going? A. To the opposite side of the car to swing the engineer down. I knew the engineer would have his head out of the window. Q. Was that the proper way for you to go? (Objected to; overruled; exception.) A. Yes, sir.'

Other evidence tended to show that he did not take hold of the grab iron, which was about the center of the end of the car, but of the loose end of an iron tie rod of about the size of the grab iron. This gave way, and he fell between the rails, and in front of the moving car upon which he was standing. It further appeared that inside of such coal cars there is an iron brace rod which runs across the car to support the sides of the car against pressure from the load. One end of this brace rod had broken loose, and the loose end was hanging in looped shape over the end of the car; the loop end forming something of a handle just above the handhold which the plaintiff supposed he had hold of. The negligence of the railroad company was in the presence of this looped broken tie rod, hanging over the end of the car in a situation likely to deceive a brakeman endeavoring to support himself, especially in the dark, upon the grab iron, and so the jury was instructed.

This action was predicated upon section 3365-21, Rev. St. Ohio, which makes proof of an injury to an employe by reason of any defective car or 'attachment thereto' prima facie evidence of negligence; there being a statutory presumption from an injury due to such defect to an employe that the company had knowledge before and at the time of the injury. It is not plain just what is deemed the error in the instruction of the court in respect of this statutory presumption of negligence. In the brief, counsel seem to lay stress upon the fact that the court said that, if the jury was satisfied that the accident happened substantially as the plaintiff claimed it did, the defendant was negligent. But this must be taken with its context. The court had before explained that the Ohio statute raised a presumption of negligence from evidence of an injury from a defect, and that it would devolve 'upon the defendant to introduce proof to remove the effect of that presumption of negligence arising out of that fact. ' He also followed the statement particularly complained of by saying:

'Because then we have the case where an accident happened and injury resulted in consequence of a defective attachment of a car operated by the defendant, or of a defect in a car operated by the defendant, and the result would be that the defendant would have to offer testimony to excuse that negligence; that is, that would be the prima facie status of it.' Further explaining, he added:

'A presumption of negligence would arise from that proof, and it would fall upon the defendant to introduce proof to the contrary, to an extent sufficient to remove the effect of that presumption of negligence arising out of that fact.'

In Klunk v. Hocking Valley Railway Company, 74 Ohio St. 125, 77 N.E. 752, it is said, in reference to this Ohio statute:

'But, while the effect of this statute in the cases to which its provisions apply is to so modify the rules of evidence as to make the proof of such defect prima facie evidence of negligence on the part of the corporation, yet this statute neither changes nor affects the rule as to the quantum or degree of evidence sufficient or necessary to rebut or control the prima facie case thus raised. The general rule would seem to be well established, by an almost unbroken line of authority, that to rebut and destroy a mere prima facie case the party upon whom rests the burden of repelling its effect need only to produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose counterbalance the evidence by which the prima facie case is made out and established. It need not overbalance or outweigh it. Smith v. Sac Co., 11 Wall. 139, 20 L.Ed. 102; Stewart v. Lansing, 104 U.S. 505, 26 L.Ed. 866; Foster v. Hall, 12 Pick.(Mass.) 89, 22 Am.Dec. 400; Railroad Co. v. Brazzil, 72 Tex. 233, 10 S.W. 403.'

This court, in Toledo, St. L. & W.R. Co. v. Star Flouring Mills Co., 146 F. 953, 77 C.C.A. 203, and Shankweiler v. Baltimore & O. Ry. Co., 148 F. 195, 78 C.C.A. 353, accepted this as a proper interpretation of this statute. There was no affirmative error in what the court did say, and, if the plaintiff in error had desired anything more in reference to the degree of proof which would be sufficient to counterbalance the statutory presumption, there should have been a special request upon that matter. No such request was made.

2. The defendant sought to rebut the presumption of negligence by evidence of recent inspection. There was evidence tending to show that this car had been inspected on the day of the accident, and that the inspectors had not discovered this broken tie rod, and that such a condition, if it had existed when the inspection was made, was one of such obvious character that it could not have escaped observation. From this evidence it was claimed that the defective attachment originated after the inspection, and, if so, was so recent as not to constitute evidence of negligence.

The court, in substance, instructed the jury that the defendant was not a guarantor 'of the safety of instrumentalities and the attachments upon its cars. ' 'If,' said the court, 'that inspection was then suitably and properly made, and this defect did not appear, and did not exist at that time, then I charge you that the defendant used ordinary care. But the mere fact that it had suitable inspectors, and that its inspectors inspected, does not carry with it, of necessity, the conclusion that the car was properly inspected. It is for you to say whether or not, upon all of this testimony, the presumption that this car was defective at the time of the accident has been removed by their testimony showing the kind and extent and time of inspection. ' This was a full, clear, and sufficient...