Long Pole Lumber Co. v. Gross

• Decision Date: 14 July 1910
• Docket Number: 939.
• Citation: 180 F. 5
• Parties: LONG POLE LUMBER CO. v. GROSS.
• Court: U.S. Court of Appeals — Fourth Circuit

180 F. 5

LONG POLE LUMBER CO. v. GROSS.

No. 939.

United States Court of Appeals, Fourth Circuit.

July 14, 1910

[Copyrighted Material Omitted]

The plaintiff below-- now designated as defendant in error-- was employed by the defendant below as locomotive engineer, and was engaged in running defendant's locomotives from the mills to its timber standing in the woods. Defendant operated a lumber plant and a railroad or tramroad from its plant to the woods where it owned standing timber, and, when the timber was cut, the logs were loaded on cars and hauled over this road by the locomotive to the mills. Plaintiff was hired as engineer for about two years prior to the accident complained of in this action. The railroad in question was five or six miles long, and ran up Lewis' creek, in Russell county, Va., and there were many bridges and trestles in the road over which the locomotive and cars had to run. The country was hilly and mountainous and the creeks were often considerably swollen and the bridges and track were liable to be washed out as a result of the rains. Some few weeks before the accident there had been washouts of some of the bridges, and it was necessary to replace them.

Noah Brown, foreman of defendant's hands, was requested to replace the bridge in question. The bridges were built by building two wooden abutments (like a square pen), and then laying two wooden 'stringers' parallel to each other and . . . feet apart from one abutment to the other, then laying cross-ties across the 'stringers' (the cross-ties extending over the side of each 'stringer' about a foot), and then laying wooden rails across the ties parallel with and over the 'stringer.' In the construction of the bridge in question Brown had charge of the work. It appears from the evidence that he put in an old knotty piece of timber which was taken up out of an old track, and had a 'saddle-notch' cut in it about three or four inches deep, as one of the stringers. He was told at the time by witness Hugh Gillespie that the stringer was 'no account,' and it also appears from the evidence that this stringer would not have supported an unloaded train or empty locomotive. After the bridge was built this 'stringer' was propped up to keep it from breaking, and plaintiff ran his locomotive and train over it daily.

On Saturday and Sunday before the accident (which happened on Monday) there was a rain, the first after the bridge was built; but it appears that the rain was not heavy, and that the creek was only 'a little bit' flush. On Monday morning after this rain plaintiff started out with his train, pushing five cars ahead with train foreman (who was also track foreman) Estep in charge. The cars were 22 feet long, the locomotive 15 feet, making the train 125 feet long, with the locomotive and engineer (plaintiff) in rear. Foreman Estep rode on front end of front car, for the purpose of watching the track and bridges, to see if the water had washed out any props, etc. They ran over all the bridges safely until they got to the one in question, and just as they reached this one Estep concluded that because they had gotten over the others safely he 'hardly thought it worth while' to look out for this one; and it appears from the evidence that he had not made any inspection of this bridge in question from about the date the props were put under it up to the date of the accident. About the time the front car reached the bridge, Estep quit his post and went back to the engine to sand the track. The cars went over safely, but when the engine got on the bridge the engineer (plaintiff) heard something begin to 'pop,' and the next thing he knew his engine went over and inflicted the injuries complained of. The dangerous 'stringer' had broken in two in the 'saddle-notch' under the weight of the locomotive. The props were washed out and were afterwards seen lying in the creek nearby.

The jury returned a verdict in favor of the plaintiff in the sum of $3,500, together with interest on the same from September 22, 1909, from which judgment defendant sued out a writ of error.

P. H. C. Cabell and V. L. Sexton (Sexton & Roberts, on the brief), for plaintiff in error.

Wm. H. Werth (Rough & Rough, on the brief), for defendant in error.

Before PRITCHARD, Circuit Judge, and BOYD and DAYTON, District Judges.

PRITCHARD Circuit Judge (after stating the facts as above).

There are a number of assignments of error. The first relates to the refusal of the court to grant the motion of the defendant below to instruct the jury to return a verdict in its favor. This motion was based upon the following grounds: (a) That no negligence on the part of the defendant as the proximate cause of the injury was shown; (b) the negligence, if any, was that of a fellow servant; (c) the plaintiff assumed the risk. The learned judge who tried the case below in overruling the motion made the following statement:

'The rule of the federal court, as I understand it, as to fellow servants, is that with regard to such employes as we are considering in this case it depends on what the negligent servant was doing; that is to say, that the servant from whose negligence the plaintiff suffers was engaged in performing a nonassignable duty of the master. He is not a fellow servant of the plaintiff. It seems to me that the plaintiff here suffered injury from the negligence of Mr. Estep, who was charged with the duty of making an inspection to discover the result of this recent rise in the stream. Consequently, in the performance of that duty, he was performing a nonassignable duty. He was a vice principal, and not a fellow servant of the plaintiff. It seems to me that there is evidence of negligence; that is to say, evidence tending to show negligence on the part of the defendant in not having a proper inspection of the bridge made after knowing there had been a rise in the stream since Saturday.

'The Court: The motion for a peremptory instruction is overruled.

'Mr. Cabell: Save the point.'

It appears from the foregoing that the court was of opinion that the defendant's liability grew out of the failure to inspect the bridge after the rain. However, an inspection of the record discloses the fact that the original declaration contains an allegation to the effect that the defendant in the construction of its bridge or trestle at the point where the injury was incurred failed to use ordinary care, caution, and diligence in the selection of its stringers for the purpose of connecting one abutment with the other, and that the company placed across said trestle one stringer far too small and weak for the purposes of such construction, and that it was further weakened by rot and decay, and because of such defects was too weak, by far, to support an engine and loaded cars, such as were used over this line. These allegations could have been made more explicit, but we think they are sufficiently clear to inform the defendant of the character and nature of the negligence alleged to enable it to make proper defense to the same. There was evidence offered tending to show a failure on the part of the defendant to properly construct the trestle, that the stringer was weak and defective, and that the supports in the shape in which they were put in were liable to be washed away. There was, we think, sufficient legal evidence to go to the jury on the question as to whether the defendant exercised due care and caution in the construction of the bridge. It appears from the evidence of Superintendent Settle that he was as a matter of fact informed as to the dangerous condition of the road after the rain, and gave Foreman Estep express instructions to inspect on account of such condition. Among other things, in his testimony bearing on this point, Settle said:

' * * * Q. What orders did you give to Mr. Estep, and when did you give them to him, and where? A. These--

'Mr. Worth: Wait. Are you going to show that those orders came to the plaintiff? I object. (Overruled. Point saved.)

'Q. Read the question. (It is read.) A. Saturday night and Sunday was when this rain was, I think it rained, up until about 1 o'clock on Sunday, and I was out looking at the flood, or looking at the situation to see how bad the flood was, near the place where I boarded at Mr. Osborne's. This house was very close to Lewis creek, the main creek below the mill, and I says to Mr. Estep, I says, 'I wonder how serious this flood is.' I says: 'It may not be as bad up on the logging road as it is here, as this place where we were was below the forks.'

'Q. Below what? A. The forks in the creek, where they came in, known as lower branch of the creek, where I was. We had water from both streams. I told him what to do, you understand, Monday morning, and I says to Mr. Estep: 'Now, I want you to be careful, as this flood, I don't know how bad it is, to be careful, and examine these trestles carefully, before you go over them, and I will go with the dry lumber train in the morning to examine these trestles.'

'Q. What position did Mr. Estep hold? A. Mr. Estep was train foreman.

'Q. Train foreman? A. Yes, sir.'

Thus it appears that the superintendent had full knowledge of the rain, and that he gave Estep (the foreman) instructions to make proper inspections on account of the same. That it was the duty of the defendant company to maintain a safe place to work-- roadbed, etc.-- we think is the well-settled law of the land; and this applies to every railway, of whatever description.

Section 4274, 4 Thompson on Negligence, among other things provides:

'The obligation of maintaining a safe track for the protection of the servants employed in the operation of the railway is ascribed to every proprietor operating a railway of whatever...