Luck v. Louisville & N. R. Co.

• Decision Date: 31 March 1934
• Citation: 69 S.W.2d 899
• Court: Tennessee Supreme Court
• Parties: LUCK v. LOUISVILLE & N. R. CO.

69 S.W.2d 899

LUCK v. LOUISVILLE & N. R. CO.

Supreme Court of Tennessee.

March 31, 1934.

Appeal in Error from Circuit Court, Houston County; J. D. G. Morton, Judge.

Action by Charles L. Luck against the Louisville & Nashville Railroad Company. Judgment in favor of the defendant dismissing the suit was reversed by the Court of Appeals, and the defendant appeals.

Judgment of the Court of Appeals reversed, and the suit dismissed.

E. J. Harris, of Bolivar, for plaintiff in error.

John S. Daniel, of Clarksville, for defendant in error.

CHAMBLISS, Justice.

Plaintiff was an employee of the defendant railroad, engaged as a laborer in connection with railroad bridge construction and repair work. He sues under the Federal Employers' Liability Act (45 USCA §§ 51-59) for injuries to his spine and kidneys caused by a strain to the back, suffered while engaged with other workmen in loading boxes on a train from a platform. He alleges in his declaration that while so engaged his foot slipped in or on grease, or oil, on this platform, which was wet after rain, and that the railroad was actionably negligent in failing to provide a safe place for him to work — specifically in allowing this grease or oil to be and remain on this loading platform. At the close of plaintiff's proof, the trial judge sustained a motion of the defendant for a directed verdict and dismissed the suit. The Court of Appeals has reversed and remanded, holding that the case should have been submitted to the jury on the issues of contributory negligence and assumption of risk. The court also considered and overruled the insistence of the railroad that the plaintiff was not at the time employed in interstate commerce. On this second question we agree with the Court of Appeals, although the issue becomes immaterial to the defense in view of the conclusion we have reached on the issue of assumed risk, as to which we are constrained to concur with the trial judge.

However, first, it should be observed that we are disposed to the view that no actionable negligence is shown on the part of the defendant with respect to the place of work. It appears that the repair work on the bridge over Wolfe creek had been going on some weeks or months, and that, according to custom, a loading platform of stone, timbers, and boards, although for temporary use, that is, during the progress of this particular bridge work, had been erected and was maintained near the bridge on the edge of the railway track, onto which articles used in the work were unloaded from trains and upon which some of such materials were kept for convenient use, among others, such being barrels or drums of oils, paints, and grease. From these receptacles, from day to day as required, these liquids and semiliquids, dipped in cans and buckets, were conveyed to the bridge near at hand. This use of the platform and handling of these materials was well known to plaintiff, who was himself engaged in assisting about the premises and in handling grease, oil, and paints, either in applying or wiping them from portions of the bridge work.

On the occasion of the injury, plaintiff had been summoned to assist in loading on a train a number of more or less weighty boxes containing bolts, screws, and other heavy articles, for shipment to other points, Louisville, Ky., and Brownsville, Tenn., being two points named. It had been raining and it was, of course, obvious that the platform was wet. The evidence is uncontradicted that the platform was free from any defect in its construction or location, and that it was similar to others in common use and with which plaintiff, in his six years of service, was thoroughly familiar. Its use in part for the storage of the oils and greases was also customary and known to plaintiff. The negligence charged consisted only in the accumulation on this platform of occasional and slight, according to the evidence, spillings of these materials incident to the dipping thereof out of the barrels with buckets. It is a matter of common knowledge that such drippings or spillings incidentally, and naturally, indeed necessarily, occur. This happening can hardly be characterized as actionable negligence, nor could a failure promptly to clean off such drippings, certainly until and unless the accumulation became unusual and so appreciable as to suggest danger to those engaged in working with these very materials. No such condition is suggested by the proof. On the contrary, the theory of the plaintiff, in part, is that these deposits were so slight as not to have...