Felton v. Bullard

• Decision Date: 15 May 1899
• Docket Number: 617.
• Citation: 94 F. 781
• Parties: FELTON v. BULLARD.
• Court: U.S. Court of Appeals — Sixth Circuit

94 F. 781

FELTON v. BULLARD.

No. 617.

United States Court of Appeals, Sixth Circuit.

May 15, 1899

Lawrence Maxwell, for plaintiff in error.

Harvey Scribner, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and CLARK, District Judge.

LURTON Circuit Judge.

Edward McCarn, a brakeman in the service of the plaintiff in error was killed, while descending from the top of a moving car, by reason of the defective character of a grab iron, which broke off and threw him beneath the wheels. This grab iron was attached to the end of a foreign car, which belonged to the Grand Trunk Railway Company, which had been received the day before from a connecting railway company. The grab iron was of the usual construction, and had been attached to the end of the car, in the usual way, by two screws, each of from three to four inches in length; one being at each end of the iron. An examination after the accident disclosed the fact that one of these screws was badly rusted, and had long been broken, so that it supported one end of the iron by a stub only one-half inch in length, which rested in wood much decayed. The screw at the other end appeared to have been freshly broken or wrenched in two; a part being pulled out with the grab iron when it came off the car. That this defective grab iron was the direct cause of the death of the intestate was not disputed. It constituted an attachment upon a car at the time being operated by the receiver upon a line of railway within the state of Ohio.

The Ohio act of April 2, 1890, so far as it bears upon the facts of this case, furnishes a rule of law which must govern its disposition. The second section of that act makes it unlawful for any railway corporation to knowingly or negligently use or operate any car that is defective or upon which any attachment thereto belonging is defective. It also provides that, if an employe of any such corporation shall receive any injury by reason of any defective attachment thereto belonging, the corporation 'shall be deemed to have had knowledge of such defect before and at the time such injury was so sustained,' and that, when the fact of such defect shall be made to appear by such employe or his legal representatives in an action against any such railroad corporation for damages on account of such injuries so received, the same shall be 'prima facie evidence of negligence on the part of such corporation.' 87 Ohio laws, 149. This section of this statute recognizes no distinction between the liability of a railway company for injuries sustained by its employes through the operation of defective cars owned by such corporation and injuries sustained from defects in foreign cars. The statute applies to cars 'owned and operated, or being run and operated by such corporations. ' The liability is the same in either case. How, then, may this prima facie evidence of corporate decisions of the supreme court of Ohio were to the effect that a railroad company was not liable to a brakeman for the negligence of a car inspector, it being held that the brakeman and the inspector were fellow servants. Railroad Co. v. Fitzpatrick, 42 OhioSt.

318; Railroad Co. v. Webb, 12 Ohio St. 475. The third section of this act changes the law of fellow servant in the cases to which it applies. That section provides that:

'In addition to the liability now existing law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow servant, but superior of such other employe, also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.'

This section would seem to have no bearing upon the case now to be decided, inasmuch as the inspector employer by the receiver had no subordinates, and had no power 'to direct or control any other employe' of the receiver. He was sole inspector, with no power of direction or control and no assistants. The situation is, therefore, unique. The inspector, under the decisions of the Ohio courts, which doubtless constituted a part of 'the now-existing law' referred to in this section, was the fellow servant of the brakeman. This 'now-existing law' is not changed by this section, except in so far as specifically provided by this enactment. Conceding, therefore, that the third section has no application to the peculiar facts of this case, we reach the inquiry as to the effect of the second section, which creates a statutory presumption of corporate knowledge of the defect from evidence of its existence and an injury sustained by an employe engaged in operation of such defective car. Is that prima facie case rebutted by evidence that the railroad corporation had furnished a sufficient and competent inspector? This question finds its answer in the case of Railway Co. v. Erick, 51 Ohio St. 146-162, 37 N.E. 128. One of the questions in that case arose upon the refusal of the trial court to instruct the jury that if the company had employed a competent inspector, whose duty it was to carefully inspect all cars and their appliances before they were permitted to go out, the company would not be liable if he neglected to make such inspection. This, in various forms, was refused. The supreme court held that the presumption of knowledge of the defective condition of the car in question, raised by the proof of the defect and injury, under the second section of the act of April 2, 1890, was not rebutted by proof of the employment of a competent and sufficient inspector. Upon this question the court said:

'The presumption of knowledge of the defect, before and at the time of the injury, is, by the statute, chargeable to the company; and this statutory presumption cannot be overcome by proof of facts which only raise a presumption that the company did not have such knowledge. Competent and careful inspectors are presumed to properly inspect the cars and their attachments, but such presumption would not overcome the statutory presumption of knowledge of defects before and at the time of the injury. It would take an actual and proper inspection, or its equivalent, to overcome the statutory presumption of knowledge of such defects. It will be noticed that this section of the statute also provides that, in the trial of a personal injury case against a railroad company, the fact of such defect in its cars or their attachments shall be prima facie evidence of negligence on the part of such corporation.' That this section of the statute constitutes a mere rule of evidence, as decided by the same court in Pennsylvania Co. v. McCann, 54 Ohio St. 10, 42 N.E. 768, and Hesse v. Railroad Co., 58 Ohio St. 167, 50 N.E. 354, is no answer. These cases in no way diminish the weight of the case of Railway Co. v. Erick, supra, as an authoritative construction of the statute, in which it is held that the statutory presumption of knowledge is not rebutted by anything less than evidence that there was 'an actual and proper inspection.'

Aside from the effect to be given to the second section of the act of 1890, we hold that the duty of inspecting foreign cars is a duty from the master to his servant, and that the master is responsible to the servant for all defects which would be disclosed by a reasonably careful inspection. The well-known course of business pursued by carriers in this country involves so large a use of foreign cars as to make it inadmissible that any distinction should be recognized between the duty of caring for the safety and protection of employes engaged in operating such cars and that exacted in respect to cars owned or controlled by the carrier. Employes can no more be said to assume the responsibility for injuries due to the defective condition of foreign cars than they can be said to assume the risk arising from defects in domestic cars which might have been discovered by proper inspection. In the one case, as much as in the other, the inspector is discharging the duty of the master to his servants, and for his negligence in this particular the master is responsible. The question is one of general, and not local, law, unless controlled by statute. It is, therefore, a question for the courts of the United States to decide...