McCain v. Chicago, B. & Q. R. Co.

• Decision Date: 24 August 1896
• Docket Number: 725.
• Citation: 76 F. 125
• Parties: McCAIN v. CHICAGO, B. & Q.R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

76 F. 125

McCAIN v. CHICAGO, B. & Q.R. CO.

No. 725.

United States Court of Appeals, Eighth Circuit.

August 24, 1896

T. J O'Donnell (W. S. Decker and Milton Smith were with him on the brief), for plaintiff in error.

Henry F. May (Edward O. Wolcott and J. F. Vaile were with him on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff got a sliver of steel in his finger while he was wiping an engine for the defendant, and sued it for negligence. The court instructed the jury to return a verdict for the defendant, and from the judgment rendered accordingly this writ of error was sued out. Louis M. McCain, the plaintiff in error, was a common laborer, who had been employed by the Chicago, Burlington & Quincy Railroad Company, the defendant in error, to render such services as might be assigned to him. He had worked several days upon a repair track, and one or two days wiping engines in the roundhouse of the defendant. The constant hammering of frogs and other inequalities in the tracks of the railroad company had produced a splintered sliver of steel upon the outer edge of one of the driving wheels of an engine which came into the roundhouse to be cleaned. This sliver was firmly attached to the tire of the driving wheel, was six inches long, and projected from one-half an inch to an inch beyond the outer edge of the tire. Plaintiff was wiping this engine in the daytime. He was wiping some rods that ran alongside the engine with one hand, when he placed the other upon the tire of the engine to support himself, and stuck a small splinter from this sliver in the fleshy part of the fore-finger of that hand. He did not remove the splinter for several days and the finger festered and seriously injured his hand. The error here assigned is that the court instructed the jury to return a verdict for the railroad company upon this state of facts. There are several reasons why, under the repeated decisions of this court, this assignment cannot be sustained. An ordinarily prudent man would not have anticipated, as the probable result of this sliver upon the tire of the wheel of the engine, such an injury as resulted to this wiper. The evidence is uncontradicted that slivers or splinters like these are not infrequently formed upon the tires of engines that they do not incapacitate the engine for its service, and that they are ordinarily permitted to remain until the wheels are turned anew. An engine wiper is furnished with waste and oil with which to clean the engine. An employer certainly could not anticipate that he would place his bare hand upon splintered steel, to support himself in rendering this service, when the smooth surfaces of all the other parts of the engine were open to his use for this purpose. An injury that could not be foreseen or reasonably anticipated as the probable result of negligence is not actionable. Railway Co. v. Elliott, 12 U.S.App. 381, 386, 5 C.C.A. 347, 349 and 55 F. 949, 951, 952. The danger and risk from the small splinters in this sliver of steel were patent, and open to the most cursory observation. It projected from the tire of the wheel from half an inch to an inch, and it was six inches in length. The master is bound to notify his servant of the latent risks and dangers of the employment, which he can reasonably anticipate that one of the servant's age, capacity, and experience would not know. But who could reasonably anticipate that a common laborer, 33 years old, would not know the risks and dangers to his hand...