Kingrey v. New York, C. & St. L.R. Co.
| Decision Date | 14 March 1924 |
| Docket Number | 3949. |
| Citation | 297 F. 376 |
| Parties | KINGREY v. NEW YORK, C. & ST. L.R. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Rehearing Denied April 11, 1924.
Louis H. Winch, of Cleveland, Ohio (John A. Cline and Payer, Winch Minshall & Karch, all of Cleveland, Ohio, on the brief), for plaintiff in error.
D. R Wilkin, of Cleveland, Ohio (Wilkin, Cross & Daoust, of Cleveland, Ohio, on the brief), for defendant in error.
Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.
Plaintiff brought this suit to recover for personal injuries received by him while employed as a riveter in the erection of a bridge at Cleveland, Ohio, over the railroad right of way for eliminating grade crossings. The injuries were received through the collision of defendant's locomotive engine with a plank of the scaffold or platform on which plaintiff was sitting while operating a pneumatic hammer. There was trial by jury, with verdict and judgment for defendant. The platform (which was said to be about 12 to 14 1/2 feet above the ground) was constructed by placing four planks (two on each side of an iron column) at right angles with the railroad tracks, crosswise of two needle beams suspended from a girder by a rope at each end of each beam; one beam being on each side of the column, and both needle beams being lashed thereto. The inner end of each plank is said to have extended 9 or 10 inches beyond the column. Spreader bolts were supposed to be used to keep the planks from moving. Estimates of the clearance between the ends of the planks and the 'track' varied from 9 to 15 inches. [1]
The collision was caused by an awning or sunshade which projected from the side of the cab, about 1 1/2 inches when up and 11 inches or more when down. The grounds of alleged negligence charged included (in addition to several others) failure to sound whistle, signal, or warning, or to maintain watchmen or flagmen, for the purpose of apprising plaintiff of the approach of the train, or at a sufficient distance from the work to warn the oncoming train of plaintiff's dangerous position, and in operating the train with a cab awning so projecting over the rails as to be likely to strike plaintiff. The claimed errors on the part of the trial court, as summarized in plaintiff's brief, will be referred to in their order.
1. It is contended that there was error in not stating to the jury that the defendant was liable if, without notice or warning, it ran the train past the scaffold on which plaintiff was working with an awning projecting so far from the cab that it was likely to strike a scaffold erected in the ordinary way for the purpose of doing riveting on the columns; 'it being admitted that defendant had full knowledge that such work was then going on upon this particular bridge. ' No instruction to this effect was in terms asked, nor was there exception to the failure to so instruct.
The specific instruction requested previous to the giving of the charge (and to whose refusal exception was taken) was that the plaintiff 'was an invitee on the tracks, and it was the duty of the railroad company to exercise ordinary care not to injure such invitee, and after they knew or ought to have known of the presence of the plaintiff, they must exercise reasonable care not to interfere with him. ' This request was denied, for the reason that it was understood by the court to mean that defendant 'ought to have known of plaintiff's position there, and in the light of that knowledge ought to have taken some definite form of precaution'; the judge adding that he could not 'give that as a binding instruction.' No suggestion was made that the court misconceived the meaning of the request. On the contrary, at the conclusion of the charge, counsel suggested an instruction (also refused against exception) 'that, because the plaintiff was invited to be at the place and at work there, they (defendant) must take cognizance of the fact and be held to have knowledge of the fact.' We think the refusal of the instruction actually requested was not error, and for the reason that the court would not have been justified, under the evidence, in charging peremptorily that defendant ought to have known of plaintiff's position. Plaintiff was employed by an independent contractor, which managed and directed its own work, and in the course of a construction covering a long period of time. It appears that structural steel was not, at the time of the collision, in course of erection at the location in question. While the switchman on the colliding train testified that the 'whole crew (presumably meaning the switch train crew) knew men were working on the bridges, and that is why slow orders were issued,' not only does that fall short of asserting knowledge by defendant that riveting was being done within colliding distance from the track, but the engineer testified that as he approached the bridge he saw no men working around it, that he was 'looking ahead to see if there was any obstruction in front of him,' and that 'there was nobody working there that I could see. ' There seems to have been no flag or other warning on the work. The scaffolding was on the engineer's side. The train came from the east, and plaintiff was seated on the west side of the column, from which position he could apparently not readily, at least, see the engine coming, while he was using the hammer. It was open to inference that under such conditions the engineer could not readily see plaintiff. The fireman said that, as he looked at the bridge, he saw no men working on the scaffold, and that as he passed under it he did not know that any men were working there. The construction company's foreman, in charge of the work, testified that:
He says, also, that he ordered the men to keep a lookout for the trains when they were driving rivets, that there were nine men other than plaintiff who were to be looking out, and that the foreman was absolutely to look out for them too. Plaintiff testified that, when a scaffolding was swung down from an overhead bridge like that, and he knew a train was coming, they would always pull the scaffold up until the train went by; that, had they known the train was coming, he would have pulled the scaffold up higher, so as to give greater clearance than was then had; also that he would have gotten out of the way--grabbed the column on the lacings; that up to that morning they had been the only riveting gang on that particular job, and that he had not done any riveting on that job before that morning (it is inferable that the colliding train came through within about half an hour after plaintiff began work); and that the boss was usually staying on the job and 'would holler when a train was coming. ' He also said that he had seen a passenger train go east that morning, but that he did not hear the engine in question before it came, and did not know that the train which caused the collision was coming.
We think there was thus testimony at least tending to show that when only riveting was being done the workmen were expected to keep out of the way of trains and to protect themselves. The court, however, instructed the jury that if defendant knew, or in the exercise of ordinary care should have known, that the plaintiff was working in and about its tracks, although overhead of the tracks, in the construction of the bridge, in a situation where he was or would reasonably be likely to be in danger by the operation of the train over the track past the place where he was working, then defendant 'owed him * * * the duty of operating its train in such a way as would not unreasonably hazard his safety, * * * as would be reasonably consistent with his safety,' thereby imposing a duty of giving a reasonable warning and notice of the approach of the train, and of operating it at such a reasonable rate of speed that a reasonable notice and warning would be reasonably adequate to protect the plaintiff or enable him to obtain a place of safety. There was testimony by plaintiff and others tending to show that awnings were not ordinary equipment on trains. The assistant foreman of the roundhouse testified, however, that the awning in question was then 'standard equipment' furnished by the railroad on all yard freight engines (which the engine in question was said to be), but not on passenger trains.
The jury was instructed that if the ordinary method of operation which the plaintiff was carrying on, and of which defendant knew or should have known, was safe in the operation of the ordinary and usually equipped rolling stock, it would owe the further duty not to operate such rolling stock past the scaffold where plaintiff was working equipped in a different way, which might add different hazards, without taking further and additional precautions by way of lookout on the train or giving notice to plaintiff. The context indicates that by 'equipped in a different way' reference was made to the cab awning. We see nothing to criticize in the use of the words above italicized. In view of the state of the evidence, we think the charge as given was sufficiently favorable to plaintiff in the respects under consideration.
Plaintiff's counsel contends in brief that the only negligence charged in the petition, which was the real proximate cause of plaintiff's injuries, is that defendant negligently...
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