Illinois Cent. R. Co. v. Ihlenberg

• Decision Date: 08 July 1896
• Docket Number: 402.
• Citation: 75 F. 873
• Parties: ILLINOIS CENT. R. CO. v. IHLENBERG.
• Court: U.S. Court of Appeals — Sixth Circuit

75 F. 873

ILLINOIS CENT. R. CO. v. IHLENBERG.

No. 402.

United States Court of Appeals, Sixth Circuit.

July 8, 1896

The federal court in Tennessee will enforce, with respect to a tort committed in Mississippi, the constitutional provision section 193, of the latter state that knowledge by any injured employé of the defective or unsafe character or condition of any machinery, ways, or appliances shall be no defense to an action for the injury caused thereby, it not being opposed to the policy of the laws of Tennessee.

Rudolph Ihlenberg, the plaintiff below and the defendant in error was a locomotive fireman employed by the Illinois Central Railroad Company, the defendant below and the plaintiff in error here, in July, 1891. He had been employed as fireman for 18 days before he was hurt, though actually engaged in work but 10 days. He had never worked as a fireman before. While on duty, and while the engine was running from 15 to 20 miles an hour, he stepped upon the tender, to get a drink of water from a keg placed upon the tool box. A sudden roll or jerk in the engine caused him to lose his balance, and he put his foot in the open space between the engine and the tender. This threw him off the engine onto the ground, and resulted in severe injured to him. His claim in the action was the the engine was defective in not having an apron covering the space between the tender and the engine, so that his foot would not have caught in it. He had ridden on this particular engine but two days. The defenses set up by the defendant were-- First, that it was not a defective engine, because many engines were without aprons, and the presence of the apron when used was not for safety, but merely to keep the dust from coming up in the engine cab; and, secondly, that the plaintiff had assumed the risk of danger from the defect if it was a defect, by reason of the absence of the apron. The accident occurred between Canton, Miss., and Way's Bluff, Miss., on the line of the defendant's railway, on the 18th of July 1891.

Section 193 of the constitution of Mississippi, adopted November 1, 1890, is as follows: 'Sec. 193. Every employe of any railroad corporation shall have the same right and remedies for any injuries suffered by him from the act or omission of said corporation or its employes as are allowed by law to other persons, not employes, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured or of a fellow servant on another train of cars of one engaged about a different piece of work. Knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways or appliances shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars, or engines voluntarily operated by them. When death ensues from any injury to employes, the legal or personal representatives of the person injured shall have the same right and remedy as are allowed by law to such representatives or other persons. Any contract or agreement express or implied made by an employe to waive the benefit of this section, shall be null and void; and this section shall not be construed to deprive any employe of the corporation or his legal or personal representative of any right or remedy that he now has be the law of the land. The legislature may extend the remedies herein provided for to any other class of employes. ' In November, 1892, after the accident occurred, the legislature of Mississippi enacted the following statute: 'Sec. 3559. Fellow Servant Rule. Every employe of a railroad corporation shall have the same rights and remedies for an injury suffered by him from the act or omission of the corporation or its employes as are allowed by law to other persons not employes, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured or of a fellow servant on another train of cars, or one engaged about a different piece of work. Knowledge by an employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances shall not be a defense to an action for injury caused thereby, except as to conductors or engineers in charge of dangerous or unsafe cars or engines voluntarily operated by them. Where death ensues from an injury to an employe, the legal or personal representative of the person injured shall have the same rights and remedies as are allowed by law to such representatives of other persons. Any contract or agreement, express or implied, made by an employe to waive the benefit of this section shall be null and void; and this section shall not deprive an employe of a corporation or his legal or personal representative of any right or remedy that he now has by law.'

A bill of exceptions embodying all the evidence was taken, and included in it was this statement of the charge of the court: '(1) The court, among other things not excepted to, charged the jury that under the law of Tennessee, or under the common law, the plaintiff, under the facts in this case, could not recover, but that the law of Mississippi, where the injury occurred, controlled in this case; and that section 193 of the constitution of 1890 of Mississippi (which section reads as follows: 'Every employe of any railroad corporation shall have the same right and remedies for any injuries suffered by him from the act or omission of said corporation or its employes as are allowed by law to other persons, not employes, where the injury results from the negligence of a superior agent or officer, or of a person having the right to control or direct the services of the party injured, and also when the injury results from the negligence of a fellow servant engaged in another department of labor from that of the party injured, or of a fellow servant on another train of cars, or one engaged about a different piece of work. Knowledge by any employe injured of the defective or unsafe character or condition of any machinery, ways or appliances shall be no defense to an action for injury caused thereby, except as to conductors or engineers in charge of unsafe cars, or engines voluntarily operated by them') was the law of that state at the time of the accident to plaintiff, and applied in this case. (2) And in this connection the court submitted the question to the jury, under instructions not excepted to, whether the engine and tender were equipped with the apron or lap described in the proof, and whether or not the injury was the result of any defect in that regard as a proximate cause thereof, and instructed them if they found such defect to exist, and that it was the cause of the injury, the plaintiff would be entitled to recover, by reason of the constitutional provision found in the laws of Mississippi above quoted in the charge.'

Estes & Fentress and Rankin & Rhodes, for plaintiff in error.

Neil & Deason and Haynes & Hayes, for defendant in error.

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

TAFT Circuit Judge, after stating the facts as above, .

The assignments of error seek to raise some questions of evidence, but the record is not in such a condition as to permit it. The court allowed the plaintiff, when on the stand, to answer certain questions put to him by his counsel in respect to the pain he suffered, and the knowledge which he had of locomotives before engaging in the service of the defendant. The questions were objected to; the objections were overruled; and no exception was taken to the rulings. The absence of exceptions prevents us from considering the correctness of the court's action on the objections.

The main point which this writ of error is intended to present is that the clause of the constitution of Mississippi providing that knowledge by any employe injured of the defective or unsafe character or condition of any machinery, ways, or appliances shall be no defense to an action for injury caused thereby, is not self-executing. It is very evident that this is the only question which the bill of exceptions was prepared to make. It is now, however, attempted to raise a different question upon the charge of the court. The charge is not given in full, and only enough appears to present clearly the point already alluded to. In the first of the two paragraphs, giving a summary of the charge, the court is represented as telling the jury that the clause of the constitution of 1890 applied to this case, and introduced a different rule from that which would have been applied under the law of Tennessee or the common law; and, by the second paragraph, it appears that 'in this connection'-- that is, in connection with the operation of the clause of the constitution of Mississippi upon the case-- the court submitted the question to the jury, under instructions not excepted to, whether the engine and tender were equipped with the apron or lap described in the proof, and whether or not the injury was the result of any defect in that regard as a proximate cause thereof, and instructed them, if they found such defect to exist, and that it was the cause of the injury, the plaintiff would be entitled to recover by reason of the constitutional provision found in the laws of Mississippi above quoted in the charge. To this part of the charge of the court the...