Missouri Pac. R. Co. v. Spangler, 12570.
| Decision Date | 25 February 1944 |
| Docket Number | No. 12570.,12570. |
| Citation | 140 F.2d 917 |
| Parties | MISSOURI PAC. R. CO. v. SPANGLER. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Thomas B. Pryor, of Ft. Smith, Ark., and Harvey G. Combs, of Little Rock, Ark., for appellants.
J. Loyd Shouse, of Harrison, Ark. (H. J. Denton, of Cotter, Ark., on the brief), for appellee.
Before STONE, THOMAS, and JOHNSEN, Circuit Judges.
The action is one in negligence for personal injuries, under Arkansas common law, by an employee against a railroad company and its trustee in reorganization.1 On a trial to a jury there was a verdict for the employee. Both parties filed motions for a new trial, and the court set aside the verdict. On a re-trial, the jury returned another verdict for the employee, and, from the judgment entered thereon, the company and its trustee have appealed.
The employee claimed to have been injured when a twelve-foot ladder, used in reaching the pit of a pump house at Cotter, Arkansas, gave way as the employee undertook to descend it, in the course of his duty to oil the pumps, causing him to fall to the floor of the pit. The complaint alleged that, unknown to the employee, the ladder had rotted at the bottom, causing a piece to break off one side, and that the company was negligent in having permitted it thus to become unsafe for use, and in having failed to make proper inspections of it and to keep it in repair, and in not having provided a safe working place and a safe instrumentality, in the employee's duty to descend into the pit to oil the pumps.
The principal contention urged for a reversal is that the court erred in not directing a verdict against the employee. It is argued that the employee was guilty of contributory negligence as a matter of law, in not personally having inspected the ladder before he used it, and that the situation also was one where in any event the employee, as a matter of law, should be held to have assumed the risk.
As to contributory negligence, the company and its trustee rely upon the employee's failure to observe the following company rules:
The employee admitted that he had made no inspection of the ladder before he began to descend into the pit, but he contended that such observation as was practicably possible in the situation would not have revealed the defect. His evidence showed that the ladder was a heavy structure, of 4 × 6 timbers, twelve feet in length, intended for stationary use in the pump house, and not moved from one place or task to another, like an ordinary ladder; that it had been in the same location for years and had been used by him several times daily during that period, without any outward indication of impairment; that the company had a special inspector whose duty it was to make periodical inspections of the ladder and of conditions in the pump house generally; that the ladder ordinarily stood in six to eight inches of water at the bottom of the pit; that the part which broke off, as the employee began to descend, was a five-inch piece from the lower right-hand side; that from this piece it was apparent that the wood had rotted; that the pit itself was dark, "You just barely can see down in the bottom of the pit"; and that because of the stationary character of the ladder, the location of its base in water, and the dark condition of the pit, as well as the previous use of the ladder through a period of years without any outward indication of danger, the employee did not know that the ladder was impaired and the defect was not one which could have been detected by such general, ordinary observation as was open to him in the situation.
On this evidence, the employee's duty to inspect and the relation of his failure to do so as a proximate factor in the accident were questions for the jury from the facts and circumstances of the situation, and not questions for the court. Failure to inspect would not constitute contributory negligence as a matter of law, unless it indisputably could be said to have borne a causal relationship to the accident. Again, the rules relied on here did not prescribe specific acts of inspection, and the duty imposed was therefore simply general and one that might vary with the situation. Thus, the practical opportunity of an employee in his work to inspect a movable, light ladder, intended for general use about the employer's premises, manifestly might be different than the opportunity to inspect a heavy, stationary ladder, located in a dark pit, standing in water, and intended, like a stairway, to constitute a stable means of entry and exit in the daily use of the pump house. And it certainly could hardly be contended that the company's rules, as a matter of law, imposed on the employee the duty to slide down a rope into the pit, splash around in the water with a flashlight, and then pull himself back up to the pump house shelf, before he was at liberty to make an official descent on the ladder. Indeed, the jury might well regard such a heavy, stationary ladder as being essentially a part of the place of employment, like a stairway, rather than an instrumentality or appliance of the work itself, such as the rules would seem to have been intended to cover; and particularly so in view of the fact that the company maintained a special inspector who was charged with the duty of inspecting and keeping the ladder in repair, as part of the general pump-house conditions.
But, even if the jury treated the ladder as being a tool or appliance, within the scope of the company's rules, the employee was entitled, since the rules did not attempt to prescribe specific acts of inspection, to have his duty to inspect measured by the general standards of Arkansas law. Under Arkansas law, a servant is not required to search for latent defects in appliances, but only "to take notice of such defects or hazards as are obvious to the senses" or as are "patent to ordinary observation." Little Rock, M. R. & T. Ry. Co. v. Leverett, 48 Ark. 333, 3 S.W. 50, 55, 3 Am.St.Rep. 230; Smith v. McEachin, 186 Ark. 1132, 57 S.W.2d 1043, 1045. See also St. Louis, I. M. & S. R. Co. v. Rogers, 93 Ark. 564, 126 S.W. 375, 1199; St. Louis, I. M. & S. R. Co. v. Webster, 99 Ark. 265, 137 S.W. 1103, 1199, Ann.Cas.1913B, 141; St. Louis, I. M. & S. R. Co. v. Gilley, 121 Ark. 507, 181 S.W. 918. Within the principle of these cases, we can not say that the defect here was, as a matter of law, an obvious or patent one, in the situation presented by the evidence. It was for the jury to decide whether such general observation or inspection as the employee reasonably and practicably could have been expected to make in the conditions of the situation would have detected the defect and the danger. If it would not, then the employee's failure to inspect was not contributory negligence,2 because it could not have been a proximate factor in the accident.
As to assumption of risk, it is the contention of the company and...
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