Fleischmann Malting Co. v. Mrkacek

• Decision Date: 04 August 1926
• Docket Number: No. 3673.,3673.
• Citation: 14 F.2d 602
• Parties: FLEISCHMANN MALTING CO. v. MRKACEK.
• Court: U.S. Court of Appeals — Seventh Circuit

14 F.2d 602 (1926)

FLEISCHMANN MALTING CO. v. MRKACEK.

No. 3673.

Circuit Court of Appeals, Seventh Circuit.

August 4, 1926.

J. F. Dammann, Jr., of Chicago, Ill., for plaintiff in error.

Charles C. Spencer, of Chicago, Ill., for defendant in error.

Before ALSCHULER, EVANS, and ANDERSON, Circuit Judges.

ALSCHULER, Circuit Judge.

The judgment assailed was upon a verdict for defendant in error in her suit for personal injury.

Plaintiff in error operated a grain elevator and malthouse at Chicago. Adjacent to its buildings, and between them and the tracks of the Pennsylvania Railroad, there were on its premises two switch tracks for handling its cars of grain, 8 or 10 carloads daily, which were customarily switched there early in the day. The cars would then be moved by a rope operated by power within the elevator, and each loaded car run onto a scale on one of these switch tracks, weighed, and then moved in same manner to a place opposite a door in the elevator or in a small building next to it, the doors of the car opened, and the car unloaded by power shovels, the grain dropping into hoppers for elevation and delivery to storage bins. As each car was emptied, it was in the same manner moved back on the scale and weighed, then moved to another part of the switch track, and another loaded car put through the same course. When all were unloaded, they were coupled together and left on the switch track, to be later hauled away by a railroad switch engine. This had been the usual daily practice for years. The rope whereby the cars were moved for weighing and spotting the cars for unloading was wound upon a drum which was operated by a clutch and a lever; this mechanism being in the small building next to the elevator. The lever, operated by an employé, caused the clutch to contact or be released as desired, thus moving or stopping the movement of the drum.

Defendant in error had for about 13 years prior to the trial lived in her home a block and a half from the elevator, and for about 7 years next preceding the accident she and other women living in the vicinity were in the habit of going almost daily to the premises at the elevator and on these switch tracks, gathering up for their chickens what grain was along the tracks and in a pile of waste near by, and sweeping out what chanced to be left in the emptied cars which were on the switch track for removal, and picking up pieces of wood left thereabout. The foreman in charge of the plant and the other employés saw her and the other women there almost daily doing these things, and were well aware of the practice. At the time in question a car had been "spotted" for unloading, and either before the actual unloading had started or while in progress, the clutch in some manner came into operative contact causing the drum to revolve and the car to which the rope was attached to move, the car striking defendant in error, who was on the track for the indicated purpose, causing the wheels to pass over her, cutting off her legs.

Above facts are undisputed. Other facts, which bear directly on the question of liability, are in sharp controversy. As to them this court must accept the verdict of the jury.

There was evidence tending to show that during all the time this woman and others in her situation were coming upon the premises for the purposes indicated, no objection whatever was made to their doing so, but, on the contrary, that they were kindly treated by the foreman in charge, and other employés, and that the foreman from time to time told them they might pick up the grain that fell on and about the switch tracks and in cars, and the pieces of wood that frequently lay there from breaking open of grain doors which were nailed to the cars, often causing the boards to break and pieces of wood to fall, and that the foreman from time to time told her and the other women with her to sweep up the places about which they were gathering the grain and wood so that they might be left clean. While it might seem from the evidence for the defense that a large part of the employés' time was devoted to warning and chasing these women off the premises during all...