Lehigh Val. Coal Co. v. Warrek

• Citation: 84 F. 866
• Decision Date: 25 January 1898
• Docket Number: 29.
• Parties: LEHIGH VALLEY COAL CO. v. WARREK.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

84 F. 866

LEHIGH VALLEY COAL CO. v. WARREK.

No. 29.

United States Court of Appeals, Second Circuit.

January 25, 1898

C. W Pierson, for plaintiff in error.

F. W Catlin, for defendant in error.

Before WALLACE, LACOMBE, and SHIPMAN, Circuit Judges.

LACOMBE Circuit Judge.

Plaintiff was assigned to check the speed of certain cars, loaded with coal, running upon a track leading from defendant's mines to a coal dump. The following summary of the evidence is taken from the brief of the plaintiff in error:

'There were three appliances in use for stopping the cars. One of these was a lever, which threw a plank, situated between the rails, and hinged at one end against the bottom of the axle of the car. The second was a sprag, viz. a stick designed to be thrust from the outside between the spokes of a wheel. The third was a block or wedge-shaped piece of wood, which was put on the rail in front of the wheel. Plaintiff had used, and was familiar with, all three appliances. It was in using the third that he was injured. He had been doing the same work for the company at the same place for five or six months, blocking some 500 cars a day during that period. McKaa, the foreman, who employed plaintiff,testified that he did not instruct him when to use the one or the other of the three appliances, but left that to the judgment of the men. Plaintiff, however, testified that he used sprags in wet weather and blocks when it was dry; that the lever could only be used with slow cars, and McKaa had instructed him to use the block (i.e. rather than the lever) if the car was going fast, and that the car which injured him was going fast. It was not claimed that McKaa, or any one else, pointed out to the men just what blocks or sprags they should use. The men picked out their own blocks or sprags. There was a pile of blocks along the track, and plaintiff was accustomed to select his block himself from the pile. At the time of the accident there were other blocks and sprags at hand. According to plaintiff, there were no new blocks on the pile, but plaintiff's foreman testified that some of them were in good condition, and that a block which had become shaped to the wheel was preferable for use to a new one. No accident had ever been known from the use of these blocks. It is a method for stopping cars originally adopted by the men themselves, and now in general use in the collieries in that region. At first the men made their own blocks, but at this time they were ordinarily whittled out at the carpenter shop, situated about 150 or 200 feet from the breaker. When the men wanted blocks they would sometimes go to the carpenter shop in person to get them, and sometimes would fashion blocks for themselves. The docking boss, whose duties kept him within sight of plaintiff, testified that he had seen plaintiff on at least two occasions fashioning blocks for himself, chopping them out of sprags with a hatchet. This, however, was denied by plaintiff. Plaintiff testified that when he wanted new blocks he would notify McKaa, the foreman, and he would have them brought; that the carpenter always brought them; that he ordinarily got new blocks every two or three weeks; that he got the last blocks about four weeks before the accident; that on the Friday before the accident (which happened Monday morning) he notified Mr. McKaa that he wanted new blocks; that on Saturday, when Mr. Shoemaker, the outside superintendent, told him to hurry up, he replied, 'I can't, Mr. Shoemaker, I got old blocks, a little cracked and a little chipped off.' On Monday morning he had blocked five cars before he was hurt. When the sixth car was uncoupled by his companion 50 or 60 feet up the track, and came towards him, he took a block from the pile, and put it on the rail under the wheel. The block split in two pieces, and the wheel came over his hand. The witnesses were not entirely agreed as to the appearance of the block after the accident. According to Peter Philip, a fellow laborer, who testified through an interpreter for plaintiff: 'Block was split on the bottom, about half or three-quarters of an inch. Inside it was white wood and fresh. * * * It was, in the middle, white and fresh; but from the outside, where the crack was, it was split, and kind of rotten. * * * It was black for about half or three-quarters of an inch in from the outside. On the outside it was cracked, and chipped off, and black.' According to Mr. McKaa, the foreman, the split looked like a fresh break, and from appearances had been made by the flange of the wheel. It showed the mark of the flange. The wood was in good condition, not rotten at all. To same effect, see testimony of docking boss, Kropp. The fact that blocks look old and black does not necessarily indicate that the wood is rotten, because they are used where there is a good deal of oil and coal dust, which blacken the outside, and soak into any check in the wood.'

The theory of the plaintiff was that defendant was negligent because it furnished defective appliances to the plaintiff with which to do his work. Upon this review all contested questions of fact must be resolved in favor of plaintiff, since the jury found for him. In view of the evidence that, whenever plaintiff needed new blocks, he applied for them to the foreman, whereupon the carpenter brought them; that, so far as plaintiff was informed, there was no stock of new ones from which he could supply himself; that plaintiff, three days before the accident, and again two days before the accident, called the attention both of the foreman and of the outside superintendent to the condition of the blocks and asked for sound ones, and that to his request both replied, 'All right,' and the foreman expressly promised to 'give him new blocks right away,'-- this case is to be distinguished from those cited on the...