Kansas & T. Coal Co. v. Reid

• Decision Date: 21 March 1898
• Docket Number: 991.
• Citation: 85 F. 914
• Parties: KANSAS & T. COAL CO. v. REID.
• Court: U.S. Court of Appeals — Eighth Circuit

85 F. 914

KANSAS & T. COAL CO. v. REID.

No. 991.

United States Court of Appeals, Eighth Circuit.

March 21, 1898

Adiel Sherwood, for plaintiff in error.

Ira D Oglesby, for defendant in error.

Before SANBORN, Circuit Judge, and PHILIPS, District Judge.

PHILIPS District Judge.

This is an action for personal injuries, instituted by defendant in error, hereinafter called the 'plaintiff,' against the plaintiff in error, hereinafter called the 'defendant,' in the United States court for the Central district in the Indian Territory. Plaintiff below recovered judgment for the sum of $5,000, which was affirmed by the court of appeals for the Indian Territory. To reverse this judgment the defendant sued out a writ of error from this court.

The defendant, a mining corporation, owned and operated a mine in said territory, known as the 'Braidwood,' or 'Pocahontas,' mine, in 1895. At said mine the defendant, for the purpose of loading coal into railroad cars, had an overdump and hoisting apparatus, with a screen operated by a small engine, through which the coal passed into a chute and into the car under this chute. There was a platform extending from beneath this top-work, running west about 60 feet long, and on an elevation towards the eastern end of this platform stood said engine. Beginning a few feet west of the engine, the platform was about 4 feet above the surface of the ground, and increased in height with the elevation of the ground until at the western end it was about 5 feet high. Parallel with this platform ran a railroad track, used for switching railroad cars, to run them under said dump or chute for the purpose of loading. The inner, or southern, rail of this track was near to the platform, allowing room for the car to pass without striking the platform. For the purpose of loading the cars with coal, there was another track, called the 'slack track,' north of, and almost parallel with, the track running along the platform, over which the empty cars were pushed by hand from the main track of the railroad onto a Y, to a point about 100 feet west of the platform, and were then pushed in the same manner east, onto the first-named track. From the westernmost end of this side track, towards the platform, it was an upgrade, until a point was reached about 40 feet, perhaps, from the western end of the platform, from which point to the dump there was sufficient descent to enable the cars to run down of their own momentum. At the time of the injury in question the plaintiff was in the employ of the defendant, whose duty it was to assist in pushing, and putting in the desired position, the cars as above described. It was also his duty, after the empty car had been started down the incline towards the dump or chute, to get upon the platform, and reach the engine, to start it in motion by the time the car reached the proper position under the chute. This engine was very simple in its method of operation, and was put in motion by opening the valve. On the occasion in question the plaintiff was assisted by one William Eagly, who was the acting foreman or superintendent of the mine, and one John Wright, an employe of the defendant of the same grade as plaintiff. After the car had reached the summit on the side track leading to the dump, so it could run down without the assistance of the plaintiff, Eagly said to him, 'Run ahead and start the jigger engine' (by which name said engine was known among the employes); or, as some of the witnesses put it, 'Go ahead, and start the engine. ' Thereupon the plaintiff went forward between the two tracks at a pace sufficient to get about 30 feet in front of the car, and attempted to reach the platform by crossing the track in front of the descending car, and, when he undertook to raise himself from the ground onto the platform, he placed his foot on the end of a projecting plank, partly concealed by coal dust, from which his foot slipped, and before he could sufficient recover, in time to entirely reach the top of the platform, the descending car came along, and caught one of his feet between the platform and an upright standard on the side of the car, whereby his foot was considerably injured.

This case presents a striking illustration of the vice of trying and determining a cause on a rigid theory, rather than the facts of the particular case. The able counsel who brought this action comprehended the legal obstacles to a recovery by an employe against the master for injury sustained in performing work of a hazardous nature in the line of his undertaking, where the danger of executing a given order was as obvious to the servant as to the overseer. The original petition alleged as to the ground of recovery that while the plaintiff was engaged in the line of duty in pushing the empty car, 'when said car was moving slowly, he was ordered, commanded, and directed by the defendant to run in front of the said moving car and start a screen engine, etc and in obeying said command he was forced and compelled to go in front of said moving car on said track, and climb on said platform to start said engine, and while he was crossing said track and trying to get on said platform, being ignorant of the danger, and relying on the superior knowledge of the defendant, and also upon the defendant controlling said car, so as to give plaintiff time to obey the command, and get upon the platform out of the way of said car, plaintiff's foot was caught between said moving car and said platform; * * * that at the time of the said injury he was not employed to run, and it was not his duty to run, said screen engine. ' Apprehensive, doubtless, that it might be held to have been inexcusable foolhardiness in the plaintiff to run immediately in front of a known moving car, and undertake to get out of the way by mounting a platform four feet high, plaintiff's counsel, before the trial, amended the petition, inserting after the words, 'and trying to get on said platform,' the following: 'Being ignorant of the danger, and relying on the superior knowledge of the defendant, and also upon defendant controlling said car, so as to give plaintiff time to obey the command, and get upon the platform out of the way of said car,'-- and by inserting after the words, 'screen engine, and whose orders plaintiff obeyed,' the following: 'And in not controlling said car, so as to give plaintiff time to obey said order. ' And it was upon the facts thus predicated that the court laid the principal stress in its instructions to the jury. The actual facts were, as disclosed by the evidence, that plaintiff had more practical knowledge of the situation than the foreman. For years he had worked about this coaling station, and was familiar with its tracks and said platform. He had for weeks prior to the accident been employed in the special work of assisting in transferring cars under the coal chute, and in going to the engine on the platform to start it after the car began its descent down the grade. He knew as much as anybody the momentum of...