Lehigh Valley R. Co. v. Skoczyla

• Citation: 278 F. 378
• Decision Date: 02 February 1922
• Docket Number: 2781.
• Parties: LEHIGH VALLEY R. CO. v. SKOCZYLA. [1]
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

278 F. 378

LEHIGH VALLEY R. CO. v. SKOCZYLA. ^[1]

No. 2781.

United States Court of Appeals, Third Circuit.

February 2, 1922

Collins & Corbin, of Jersey City, N.J., and George S. Hobart, of Newark, N.J. (edward A. Markley, of Jersey City, N.J., of counsel), for plaintiff in error.

Frank Hardenbrook and Charles M. Egan, both of Jersey City, N.J for defendant in error.

Before WOOLLEY and DAVIS, Circuit Judges, and ORR, District Judge.

WOOLLEY Circuit Judge.

On a bridge devoted to both interstate and intrastate commerce Kulish was tightening nuts with a wrench which he knew was old and worn, and therefore defective. The wrench slipped and he fell from the bridge and was killed.

At the trial of this action, brought by the administrator of Kulish to recover damages for his death, the court submitted the question of assumption of risk and the jury returned a verdict for the plaintiff. By this writ of error the defendant brings here for review the action of the court in refusing to hold, as matter of law, that the decedent had assumed the risk which resulted in his death. Specifying error in this regard, the defendant relies on Pryor v Williams, 254 U.S. 43, 41 Sup.Ct. 36, 65 L.Ed. 120. In that case an employe of the defendant was directed by his boss to use a claw bar with a defective claw. Injury followed. The employe did not know of the defect, nor does it appear that his boss knew of it. The Supreme Court of the United States reversed the Supreme Court of Missouri in its holding that, as the risk was attributable to the master's negligence, the employe had not assumed it, but was guilty of contributory negligence, which, under the Federal Employers' Liability Act (Comp. St. Secs. 8657-8665), goes only to damages. By this decision the Supreme Court of the United States sustained, inferentially at least, an intermediate appellate court which had held that as the defect was quite obvious, and as it was equally obvious to the employe and employer, the employe in using the claw bar must be held to have appreciated the danger and have assumed the risks thereof. While there is a similarity between a defective claw bar and a defective wrench, that is the only point of resemblance between the Williams Case and the case under review. Here the wrench was defective. In fact, the defect was so obvious that the employe saw it and knew it. The risk of using the wrench was, therefore, equally obvious. If in these circumstances alone Kulish had continued to work with the defective wrench he would, under Pryor v. Williams and many other cases, be held, as matter of law, to have assumed the risk and would have been without right to recover for resulting injuries. But he did more. He took the wrench to his foreman, showed him its defects, and told him it was 'no good.' This clearly was an objection to its further use. The foreman looked at it, and, making no promise of reparation or substitution, ordered him back to his work. Kulish's act of returning to his work under the command of the foreman was, in the mind of the learned trial judge, a circumstance which removed the case from Pryor v. Williams and brought it within N.Y., N.H. & H.R. Co. v. Vizvari, 210 F. 118, 126 C.C.A. 632, L.R.A. 1915C, 9.

In the Vizvari Case-- also under the Federal Employers' Liability Act-- the Circuit Court of Appeals for the Second Circuit sustained the submission to the jury of the question of assumption of risk upon facts which disclosed that the employe, if he did not fully appreciate the defect of the tool with which he was working when injured, at least doubted its quality and called it to the attention of his foreman. As in this case, the foreman, without promising to repair it, abruptly ordered the employe back to his work, where later he was injured. The court held-- though the employe had knowledge of the defect-- his election to use the defective tool after making objection to his foreman did not, as matter of law, charge him with...