Louisville & N.R. Co. v. Miller

• Decision Date: 02 October 1900
• Docket Number: 838.
• Citation: 104 F. 124
• Parties: LOUISVILLE & N.R. CO. v. MILLER et al.
• Court: U.S. Court of Appeals — Sixth Circuit

104 F. 124

LOUISVILLE & N.R. CO. v. MILLER et al.

No. 838.

United States Court of Appeals, Sixth Circuit.

October 2, 1900

Plaintiff applied for employment as a switchman in railroad yards stating that he had no experience in the work. He was assigned on his request, without pay, to service under foremen as a "cub" or learner, where he worked five days, at the end of which he induced the foreman to recommend him by letters as competent for service as a regular switchman, upon which he was employed by the yard master, who knew the length of his experience, and assigned to duty without further advice, warning, or instruction. Four days later he was injured in attempting to make a coupling between cars of different construction, which could only be safely coupled in a certain way, of which he was ignorant. There was evidence that not less than four weeks' service as a learner could properly qualify a person to safely handle the various kinds of cars which ordinarily came into the yards. Held, that it could not be said, as a matter of law, that plaintiff assumed the risk, it not appearing that the danger in making the coupling was obvious to an inexperienced man and that a verdict for plaintiff on the ground that the railroad company failed in its duty to give plaintiff proper instruction would not be disturbed.

The defendant in error J. E. Miller recovered judgment against the plaintiff in error, the Louisville & Nashville Railroad Company, for an injury sustained while making a coupling. Miller was a switchman who had been in the service of the company but four days when he sustained the injury for which he sued. He had had no experience as a switchman prior to his employment, except five days of what is called 'cubbing,' by which is meant that he had been assigned, on his own application, and without pay, to a switching crew, as a volunteer who wished to learn and qualify himself for employment as a switchman. By importunity he induced two foremen of switching crews to recommend him by letters to the yard master as competent for service as a regular switchman. The yard master, with full knowledge of this limited experience, employed him as a switchman, and assigned him to duty in a switching crew without any other or further advice, warning, or instruction. Miller testified that, when he presented the letters of the foremen with whom he had cubbed to the yard master, the latter refused him employment saying that he would not be qualified with less than a month's service as a cub, but that on the next day he was given the place of a man who had in the meantime been injured and disabled. The yard master denies this view of the matter and says he accepted the certificates produced by Miller as evidence of his capacity, and employed him in good faith, as capable of fully understanding and appreciating the dangers usual and incident to the occupation. There was evidence tending to show that not less than four weeks' experience as a cub or learner would acquaint one with the hazards and risks of such a position, and give him that degree of skill, judgment, and caution requisite to a full appreciation of the risks to be encountered, and how best to guard against them. The coupling which Miller undertook to make was, as he testifies, new to him, and could only be done safely in a particular way, about which he knew nothing. At the close of the evidence the plaintiff in error moved the court to instruct the jury to find for the defendant. This was overruled, and an exception saved. The court then submitted the case to the jury upon the single question as to whether the railroad company had been negligent in permitting the plaintiff to engage in so dangerous an occupation as that of a yard switchman, in view of the knowledge possessed by its representative, the yard master, as to the experience and training he had had, without further instruction concerning the risks incident to the occupation, and how best to make a coupling such as that he was making when injured. The charge upon this subject was full and clear, and no exception was taken. There were a verdict and a judgment against the railroad company, which has sued out this writ of error.

John W. Judd, for plaintiff in error.

W. H. Washington, for defendants in error.

Before LURTON, DAY, and SEVERENS, Circuit Judges.

LURTON Circuit Judge, after making the foregoing statement of the case, .

The case was submitted to the jury upon the theory that the plaintiff was inexperienced in the work of a switchman, and that this was known to the railroad company; that, having been employed as a switchman, and assigned to work in the general yard of the company, where he was likely to be required to handle foreign cars, with and without bumpers or deadheads, and having coupling apparatus of many styles, the company was bound to qualify him for such service by giving him instruction adequate to the hazards and risks incident to the occupation, and by which he might perform his duties in the way safest for himself. The instructions to the jury in respect to this issue were full and clear, and no exception was taken thereto. The learned counsel for plaintiff in error say, however, that no such issue should have been submitted and that it was error to deny the request for a peremptory instruction for the defendant. This...