Louisville & N.R. Co. v. Johnson

• Decision Date: 01 July 1897
• Docket Number: 366.
• Citation: 81 F. 679
• Parties: LOUISVILLE & N.R. CO. v. JOHNSON.
• Court: U.S. Court of Appeals — Seventh Circuit

81 F. 679

LOUISVILLE & N.R. CO. v. JOHNSON.

No. 366.

United States Court of Appeals, Seventh Circuit.

July 1, 1897

J. M Hamill, for plaintiff in error.

Ross Graham and G. V. Menzies, for defendant in error.

WOODS Circuit Judge.

The appellee, Frank Johnson, recovered judgment against the appellant, the Louisville & Nashville Railroad Company, for an injury to his left foot, suffered while uncoupling cars in a moving freight train at the crossing of the railroad track and Third street, in Carmi, Ill. The crossing was made of boards laid lengthwise between the rails of the track, and appellee's foot was caught in the space or crevice between one of the rails and the adjacent board, and was held there until run upon by the wheels of the forward truck of the car behind him, which was moving slowly, and came to a stop, it was testified, ' within eight feet.' The negligence charged against the appellant consisted in the undue width of the crevice in which the foot was caught. On the other hand, it was contended that the railroad company was free from fault, and that the appellee was guilty of negligence contributory to the injury, because, in violation of a known rule of the company, he placed his foot between the rails when the cars to be uncoupled were in motion. The evidence shows, and it seems to be agreed, that a space of 2 1/2 inches between the rails of a track and adjacent boards of a street crossing is necessary to give room for the flanges of passing car wheels, and the evidence tends to show that by reason of wear or other cause, perhaps defective construction, the width of the place where the appellee's foot was caught was 3 or 3 1/2 inches. Error is assigned upon the admission of evidence, and upon the giving and refusing of instructions.

In respect to the duty of the railroad company the court erroneously instructed that the company 'undertook to furnish the plaintiff a reasonably safe place to work,' and to maintain the same. The instruction in full appears in the margin. ^[1] The rule is well settled, and as early as 1894, in Railroad Co. v. Meyers, 24 U.S.App. 295 11 C.C.A. 439, and 63 F. 793, had been declared by this court, that 'the master's duty requires him to exercise ordinary and reasonable care, having regard to the hazards of the service, to furnish his servants with reasonably safe appliances, machinery, tools, and working places, and also to exercise ordinary and reasonable care at all times to keep them in a reasonable safe condition of repair. ' See, also, same case on second appeal, 46 U.S.App. 226, 22 C.C.A. 268, and 76 F 443. In this case the question whether the railroad company was chargeable with negligence was, to say the least, close depending upon the inquiry whether the space between the rail and board had become, or perhaps was by construction, of such unnecessary width, as not to be reasonably safe, and whether the fact was so manifest and so long continued that in the exercise of due care the company ought to have discovered the defect in time to remove it. The error is emphasized by the terms in which the instruction concludes: 'If, while...