Great Northern Ry. Co. v. Kasischke

• Decision Date: 08 October 1900
• Docket Number: 1,345.
• Citation: 104 F. 440
• Parties: GREAT NORTHERN RY. CO. v. KASISCHKE.
• Court: U.S. Court of Appeals — Eighth Circuit

104 F. 440

GREAT NORTHERN RY. CO. v. KASISCHKE.

No. 1,345.

United States Court of Appeals, Eighth Circuit.

October 8, 1900

C Wellington (W. E. Dodge, on the brief), for plaintiff in error.

G. W Freerks (M. C. Freerks, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge.

This action was brought by Carl Kasischke, the defendant in error against the Great Northern Railway Company, the plaintiff in error, to recover damages for certain personal injuries which he sustained at Breckenridge, Minn., while he was in the employ of the defendant company, and was engaged in coaling one of its engines. It appears that, when an engine desired to take coal at the place where the accident occurred, it was run alongside of a building or shed containing coal, and that the coal was dumped into the tender by means of movable chutes or boxes in the side of the building, which were so arranged that they would slide out of their own weight, and discharge, respectively, about five tons of coal into the tender. These boxes were so arranged that they could be made to slide out of their sockets by pulling a rope, and when they had slid out a certain distance the coal which they contained could be dumped into the pit of the tender by drawing a bolt or pin, and permitting an apron or door at the front end of the box to open or fall. The plaintiff below alleged, in substance, that on the night of December 7, 1898 he was directed by his foreman to assist in coaling one of the defendant company's engines at its coaling station; that he was ordered by the foreman to stand on the locomotive tender and pull on one of the coal chutes, so as to make it slide out of its socket; that he obeyed this order, and that while in the act of pulling on the chute it suddenly slid out of its socket, thereby throwing him to the bottom of the tender, and precipitating upon him about five tons of coal. He further alleged, in substance, that the injuries which he sustained by reason of the accident were due in part to the negligence of the defendant company in failing to provide safe machinery for dumping coal, and to the faulty and defective construction of such machinery. There was a verdict and judgment in favor of the plaintiff below for a moderate sum, to wit, $1,250, considering the nature and extent of the injuries which he is shown to have sustained. We are asked by the defendant company to reverse this judgment for various reasons.

It is claimed in the first place that no evidence was introduced which tended to show that the coal chute in question was defective in any respect, and that the verdict is without any substantial evidence to support it, but a careful perusal of the record has served to convince us that this proposition is untenable. The testimony shows that the coal chutes or boxes, 12 in number, were made of sheet iron, and, if in a perfect state of repair, that they would slide out of their sockets of their own weight, by pulling a rope, or tripping them, and that they were designed to be operated in that manner, rather than by pushing or pulling them; also, that the doors or aprons of the boxes would remain closed and retain the coal until a bolt or pin was drawn, so as to release a latch which held the aprons. For some reason, however, one of the chutes (that which occasioned the injury) did not operate on the occasion of the accident as it was designed to operate. It did not slide out of its own weight when it was tripped, and, because it failed to operate as it should have done, the plaintiff was directed to stand on the tender and pull outwardly on the box with as much force as he could exert. Moreover, when the box slid from its socket it did not retain the coal, as it should have done, until the bolt was drawn and the latch released, but immediately discharged its contents into the pit of the tender, thereby covering the plaintiff's body with five tons of coal. We think that the fact that the chute, although handled properly, did not operate as it should have operated, warranted an inference by the jury that it was for some reason out of order and in need of repair. Besides, there was direct evidence on the part of one of the plaintiff's witnesses (a witness by the name of McColm), who had abundant opportunity to examine the chutes, that about 10 days after the accident none of them but one were in such a condition, owing to some defect in the pins or latches which controlled the aprons, that they would retain the coal and prevent it from dumping prematurely, while there was no testimony that during the intermediate period any unexpected event had occurred which had put them out of repair suddenly. We conclude, therefore, that a jury could properly find that the particular chute which was being operated at the time of the accident was then out of repair, and that the defect in question contributed directly to the plaintiff's injury.

It is furthermore urged that, although the chute where the accident happened may have been defective, yet the burden was on the plaintiff to show that the defendant company had knowledge of its condition prior to the accident, and that the plaintiff himself had no such knowledge. It is said that the record contains no evidence tending to show such knowledge on the part of the defendant company, while it does appear that the plaintiff himself was advised of the defect of which he now complains. We are willing to concede that it was incumbent on the plaintiff to satisfy the jury by competent evidence that the defendant knew or ought to have known before the accident that the chute was out of repair, provided it had been constructed properly in the first instance, and had become defective solely through use. We think, however, that there was some evidence which would justify a jury in concluding that the chute had been out of repair for some time prior to December 7, 1898, and that its condition ought to have been known to the defendant company, or to the person whose duty it was to inspect these chutes.

We have already referred to the fact that there was testimony to the effect that about 10 days after the accident all of the chutes but one were out of repair, and would not operate as they should have done, owing to some defect in the latches which were designed to hold the aprons in place. The defendant claimed, and offered evidence to that effect, that the chutes were inspected daily, and were in perfect order on the evening of the accident, and for a long time afterwards. The jury probably credited the statement of the plaintiff's witness McColm that all of the 12 chutes with possibly one exception, were in a defective condition very shortly after the accident; and, upon the assumption that they were convinced of this fact, it afforded a reasonable basis for an inference that the chutes, or some of them, were out of repair on the night of the injury and for some time previous, inasmuch as it did not appear that anything had happened in the meantime that would be liable to disarrange all of the chutes in that brief period. If, a week after the plaintiff was hurt, the chutes, with one exception, were out of order, and in need of repair to make them operate perfectly, or as they were designed to operate, it would be reasonable, we think, to conclude that some of them were in need of repairs previous to December 7, 1898, and that the defect should have been discovered by the defendant company, since the testimony which it produced tended to show that they were subjected to a daily examination. We think, therefore, that no error was committed by the trial court in allowing the jury to determine whether the chutes were in a defective condition on the night of the accident, and whether the defect therein was of such long standing that the defendant company, in the exercise of ordinary diligence, ought to have discovered their condition. In view of the conflict in the testimony respecting the condition of the pins and latches by which the aprons were held in place, it was the province of the jury to settle the controversy; and, if they found the chutes to be in a bad state of repair on the occasion of the accident, it was likewise their duty to determine for how long a period they had probably been in that condition, and whether reasonable care had been exercised by the defendant. It is a fact which admits of no controversy that when the plaintiff took his place on the tender, in obedience to the order of his foreman, for the purpose of pulling on the coal chutes or boxes, he was aware that for some reason the particular chute did not operate as it should have done when the rope was pulled, and that there was something which obstructed its outward movement. But it will not do to say that the testimony shows beyond peradventure that the plaintiff was aware that there was a defect in the pin or latch of the apron of the chute which he attempted to draw, which would cause it to dump prematurely. He testified, in substance, that he had only assisted in coaling engines at the coal chute in question for two nights prior to the accident, and that during that time he had learned that some of the aprons were open, but that the pins in most of them were so tight that they had to be knocked out with a pick. This statement did not warrant the trial court in assuming that the plaintiff knew that the apron of the chute which he attempted to draw was in such a condition that it would open of its own accord, but it rather made it the duty of the court to permit the jury to determine whether he had such knowledge, or ought to have acquired it, prior to the accident. It was the province of the jury to decide what knowledge he had or ought to have had as respects the...