Gulf, C. & S. F. Ry. Co. v. Jackson, 424.

• Citation: 65 F. 48
• Decision Date: 03 December 1894
• Docket Number: 424.
• Parties: GULF, C. & S.F. RY. CO. v. JACKSON.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

65 F. 48

GULF, C. & S.F. RY. CO. v. JACKSON.

No. 424.

United States Court of Appeals, Eighth Circuit.

December 3, 1894

J. W Terry, P. L. Soper, and C. L. Jackson, for plaintiff in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judges.

This case comes on writ of error from the United States court in the Indian Territory. The plaintiff, Jo Jackson, who is the defendant in error here, brought a suit against the plaintiff in error, the Gulf, Colorado & Santa Fe Railway Company, for personal injuries said to have been sustained by him in the month of September, 1891, while he was helping to tear up and relay a portion of the defendant company's railroad track near Purcell, on the bank of the South Canadian river, in the Indian Territory. The testimony shows that the railroad track at that place had been undermined by high water in the river, and that it had become necessary to take up a portion of the track, and relay it further back from the river bank, where it would be safe from the encroachment of the flood in the river. The plaintiff was employed in this work at night, with a large gang of extra sectionmen, and, at the time he was hurt, was assisting 10 or 12 other men in removing the rails from the old track which was being dismantled. As the party of men last mentioned were in the act of lifting and carrying a steel rail which weighed about 700 pounds, a portion of the river bank in their immediate vicinity caved in. This caused them to move forward very hurriedly with their burden, and as they did so, one of the party accidentally stumbled and fell. The other men thereupon dropped the rail. It fell across a tie, and one end thereof flew up, hitting the plaintiff in the abdomen thereby inflicting the injuries of which he now complains. In the complaint on which the case was tried, the plaintiff below charged, in substance, that his injuries were occasioned by the culpable neglect of the defendant company in failing to provide a sufficient number of lights to do the work with ordinary safety, and in permitting ties and other obstructions to remain in the way of the men who were engaged in dismantling the old track, and in failing to inform them of the existence of such obstructions. At the conclusion of the testimony, the court instructed the jury as follows:

'It is the duty of a railway company to furnish its employes with safe and suitable appliances to do the work they are employed to do, and if you believe from the evidence in this case that the defendant company failed to furnish sufficient light for the doing of that work in which the plaintiff was engaged with safety and security, or that the defendant failed to furnish safe premises where the work was to be done, and that the plaintiff was injured by reason of such failure on the part of the defendant either to furnish lights or safe premises, and would not have been injured but for such failure, and the plaintiff himself was free from negligence, you will find for the plaintiff, unless you find for the defendant under the instructions hereinafter given you.'

In obedience to this instruction, the jury returned a verdict in favor of the plaintiff, on which a final judgment was subsequently entered. To reverse that judgment the defendant company has sued out the present writ of error.

We have only to inquire and to determine whether, in view of the facts disclosed by the present record, the foregoing instruction was applicable to the case, and was properly given. It is doubtless the duty of a master, in very many cases, to exercise ordinary care in providing his servants with a reasonably safe place in which to discharge their several duties. When men are set to work in a building, or on a scaffolding or other structure, which has been provided by the employer for their use, it is the employer's duty to exercise reasonable diligence in seeing that such building or other structure is made reasonably safe, and that the ordinary risks of the employment are not enhanced by latent defects in the place where the servant is required to exercise his calling, whether it be a building or any other structure. In the respect last mentioned, the duty of the master to provide for the safety of his servants is commensurate with his duty to provide safe tools, machinery, materials, and other appliances for the use of the servant. It sometimes happens that much skill, experience, and care is required in erecting structures of even a temporary character for the use of laborers and artisans; and in such cases it is more especially the duty of the master to take such precautions as are reasonably necessary to guard against possible defects in such structures, which may endanger the lives of his workmen, or subject them to unusual and unnecessary risks. Manning v. Hogan, 78 N.Y. 615; Green v. Banta, 48 N.Y.Super.Ct. 156; Whalen v. Centenary...