Mason & O. R. Co. v. Yockey

• Decision Date: 13 July 1900
• Docket Number: 820.
• Citation: 103 F. 265
• Court: U.S. Court of Appeals — Sixth Circuit
• Parties: MASON & O. R. CO. v. YOCKEY.

103 F. 265

MASON & O. R. CO. v. YOCKEY.

No. 820.

United States Court of Appeals, Sixth Circuit.

July 13, 1900

Lloyd E. Knappen and A. J. Dovel, for plaintiff in error.

Medor E. Louisell and J. Byron Judkins, for defendant in error.

Before LURTON and DAY, Circuit Judges, and RICKS, District Judge.

DAY Circuit Judge.

The defendant in error, a fireman in the employ of the railway company, having, on the 28th of February, 1893, sustained serious injuries while in the service, brought this action to recover against the company for alleged negligence. The case is brought into this court upon the single proposition as to the correctness of the action of the circuit court in submitting the case to the jury, and failing to give a peremptory instruction at the close of the testimony to find a verdict in favor of the railroad company. The case cannot be reviewed here upon the weight of the testimony. Should the court have determined the case for the plaintiff in error as a matter of law, or was it properly left to the jury? A case can be properly withdrawn from the jury only where, on a survey of the whole evidence, and giving effect to every inference fairly or reasonably to be drawn from it, the case is palpably for the party asking a peremptory instruction. Insurance Co. v. Thornton, 40 C.C.A. 564, 100 F 582. In Railway Co. v. Lowery, 20 C.C.A. 596, 74 F 463, the cases are fully reviewed, and this court, Judge Lurton giving the opinion, said:

'It is the duty of the court, when a motion is made to direct a verdict, to take that view of the evidence most favorable to the party against whom it is desired that a verdict should be directed, and from the evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found for that party.'

In the present case, examining the testimony with a view to ascertaining whether a case was made under the rules above laid down, the following facts may be said to have been established: The defendant in error, George L. Yockey, had been in the employ of the company, prior to the time of the injury, about 2 1/2 years, first in the machine shop, and later as a fireman for about 1 1/2 years. The railroad is a short one, and had seven locomotives. The injury happened while the defendant in error was at work on engine No. 7. Yockey had not been at work on this engine before during that winter, but had worked upon it twice during the preceding summer. The morning of the accident he was called by the conductor, and told to hurry up. He got upon the train between 5:30 and 6 o'clock, just at the break of day, a cold, winter morning. The engine left Buttersville, a station on the road, somewhere about 6 o'clock, with two coaches,-- a combination baggage and smoking car and one coach. Defendant in error was employed constantly in his duties as a fireman from the time the train started until he was injured, firing every two or three minutes. The engine No. 7 was defective in the want of a valve stem, which is described as an iron rod passing from near the bottom of the tank, where it is fastened to a cock, up through to the top of the tank, and when in place is there operated by a wheel or other appliance whereby the cock is opened or closed to let the water pass in or out of the tank. This valve stem was out of place, and there had been substituted for it a wooden plug, driven in at the top of the tank. The roadbed was rough, and, owing to that fact, the plug, which was imperfectly fitted and driven in, would permit the water to splash through the opening about it producing a spray of water, which fell down-- perhaps carried by the wind-- onto the apron connecting the engine and tender, creating thereon an icy covering. In passing over this apron the fireman fell on the ice, and thence out of the cab, through the opening between the cab and tender, and was very severely injured. The defendant in error had noticed shortly before that the water came out of the tank, and noticed that the valve stem was gone and a wooden plug substituted. The water came near the engine, but the defendant in error did not watch it closely or at all. He had gone out of the engine several times before the injury, and had noticed the splashing of the water. Before going upon the engine that morning, the defendant in error testified he did not know anything about the plug being in that place, and that he received no warning as to the condition of the engine. He testified that he was occupied nearly all of the time; that it was a bad morning, and he was kept pretty busy putting in coal, and that his attention was on his duties as a fireman; that he did not know that the water had fallen on the apron, and paid no attention to it. If, from these facts fair-minded men might honestly draw different conclusions as to the negligence of the railroad company and the contributory negligence of Yockey, the questions are not of law, but of fact, and are to be settled by the jury under proper instructions. Railroad Co. v. Powers, 149 U.S. 43, 13 Sup.Ct. 748, 37 L.Ed. 642; Railroad Co. v. Everett, 152 U.S. 107, 14 Sup.Ct. 474, 38 L.Ed. 373. It is claimed on behalf of plaintiff in error that there is nothing in this testimony tending to show that plaintiff in error was guilty of negligence in permitting the engine to be out of repair, requiring the valve stem to be replaced by the plug; that such condition was not dangerous to the fireman's safety. The duty of the master to supply reasonably safe appliances for the servant has been so frequently stated...