Motey v. Pickle Marble & Granite Co.

• Decision Date: 13 April 1896
• Docket Number: 703.
• Citation: 74 F. 155
• Parties: MOTEY v. PICKLE MARBLE & GRANITE CO.
• Court: U.S. Court of Appeals — Eighth Circuit

74 F. 155

MOTEY v. PICKLE MARBLE & GRANITE CO.

No. 703.

United States Court of Appeals, Eighth Circuit.

April 13, 1896

W. F Hill and H. F. Auten, for plaintiff in error.

Henry Hitchcock, for defendant in error.

SANBORN Circuit Judge.

The chief complaint in this case is that, at the close of the plaintiff's evidence, the court below directed the jury to return a verdict in favor of the defendant, and judgment was rendered accordingly. David Motey, the plaintiff in error, sued out this writ to reverse that judgment. His action was for damages for a personal injury, which he alleged was caused by the negligence of the Pickle Marble &amp Granite Company, the defendant in error. The facts established were these:

The plaintiff was a laborer 34 years of age. The superintendent of the marble and granite company was at work with a horse driver, and platform spring wagon, hauling slabs of marble from the depot to a bath house in Hot Springs, in the state of Arkansas. He was handling some marble slabs in front of the bath house when the plaintiff stopped there, and the superintendent hired him to assist. He asked the plaintiff if he had ever done that kind of work before, and the latter replied that he had not. The superintendent said, 'If you are willing to do what I tell you to do, everything will go on all right. ' And thereupon the plaintiff went to work and assisted the superintendent to unload some marble slabs from the wagon. When this was accomplished, they went to the depot and again loaded the wagon. This wagon was provided with a row of stakes on each side, and a driver's seat in front, and was 12 feet long and 6 feet wide. The plaintiff and the superintendent loaded upon this wagon 14 slabs of marble. Each of these slabs was about 9 feet long by 3 1/4 feet wide, and about 5/8 of an inch thick. They loaded these slabs upon their edges, and placed 7 of them almost vertically against the stakes on each side of the wagon. This left a space of 4 or 5 feet between the 7 slabs on the right side and the 7 slabs on the left side, in which the superintendent and the plaintiff stood as the wagon moved away from the depot. They had placed the slabs so nearly plumb that they would not stand to ride, but would fall in, unless they were held in place in some way. To prevent their falling, the superintendent procured two sticks, and, as the wagon started, he stood on the rear of the wagon and held one of them crosswise, between the sets of slabs and against their tops, and the plaintiff, by his direction, stood on the forward end of the wagon and held the other in a like position, to prevent the slabs from tipping down into the middle of the wagon. When they had proceeded about a block in this way, they found that 3 of the slabs on the right side of the wagon were rubbing and chipping, and that it was necessary to put some paper between them to prevent their injury. Thereupon they stopped the horse, the superintendent took his brace from between the sets of slabs and directed the plaintiff to remove his, and to pull one of the slabs upon the right side apart from the others, so that he could put some paper between them. The plaintiff took his brace out, and took hold of the slab to pull it over towards him, when the slabs on the left side of the wagon fell upon both men, and broke the plaintiff's leg.

It is the duty of the trial court at the close of the evidence to direct a verdict for the party who is clearly entitled to recover where it would be its duty to set aside a verdict in favor of his opponent if one were rendered. Railway Co. v. Davis, 10 U.S.App. 422, 3 C.C.A. 429, and 53 F. 61; Gowen v. Harley, 12 U.S.App. 574, 585, 6 C.C.A. 190, 197, and 56 F. 973, 980; Railway Co. v. Moseley, 12 U.S.App. 601, 604, 6 C.C.A. 641, 643, and 57 F. 921, 922, 923; Reynolds v. Railway Co., 16 C.C.A. 435, 437, 438, 69 F. 808, 810. An injury that is the natural and probable consequence of acts of negligence is actionable, but an injury that could not have been foreseen or reasonably anticipated as the probable result of the negligence is not actionable. Railway Co. v. Elliott, 12 U.S.App. 381, 886, 5 C.C.A. 347, 349, and 55 F. 949, 951, 952. A servant assumes the ordinary risks and dangers of the employment upon which he enters, so far as they are known to him, and so far as they would have been known to one of his age, experience, and capacity by the use of ordinary care. Manufacturing Co. v. Erickson, 12 U.S.App. 260, 265, 5 C.C.A. 341, 343, and 55 F. 943, 946. If the negligence of the servant was one of the proximate causes of his injury,-- if his own negligence contributed to the unfortunate result,-- he cannot recover of his master, even though the negligence of the master also contributed to it. Railway Co. v. Davis, 10 U.S.App. 422, 426, 3 C.C.A. 429, 431, and 53 F. 61, 63; Railway Co. v. Moseley, 12 U.S.App. 601, 604, 608, 6 C.C.A. 641, 643, 646, and 57 F. 921, 922, 923, 925. It is the duty of the servant to exercise that degree of care, commensurate with the character of his occupation and the occasion, which a reasonably prudent person would employ under like circumstances in order to protect himself from injury; and, if he fails to exercise that care, he cannot recover of the master for an injury to which his own negligence has contributed. Gowen v. Harley, 12 U.S.App. 574, 585, 6 C.C.A. 190, 197, and 56 F. 973, 980; Railway Co. v. Jarvi, 10 U.S.App. 439, 448, 3 C.C.A. 433, 436, and 53 F. 65, 68.

These are indisputable principles of the law of negligence. The reasons of their being and some of the authorities which sustain them will be found in the opinions we have cited, and it is difficult to perceive how, upon the state of facts before us, a verdict for the plaintiff could have been sustained in this case under these rules. It is clear that this accident was caused by depressing the right side of the spring wagon by the extra weight of the two men and correspondingly elevating the left side, until the almost vertical slabs were tipped in upon the legs of the men, who together caused the disaster. The danger and risk of this accident and injury cannot be said to have been latent or hidden. A laboring man, 34 years of age, cannot be presumed to be ignorant of so common an effect of the law of gravitation. He must have known that the weight of 300 pounds placed on one side of the platform of a spring wagon would tilt it. He could not have been ignorant of the fact that a very slight horizontal movement of the top of a heavy marble slab, 3 feet wide and 5/8 of an inch thick, which stood vertically on its edge, would cause it to fall. He must have known that these slabs were so nearly vertical that they were liable to fall from any movement of the platform, for he and the superintendent had loaded them, and they had just been holding braces between them to prevent this very catastrophe. He removed his brace from between the sets of marble slabs, threw his weight upon the right side of the wagon, seized the slab to raise it, and thus caused or assisted to cause the slabs on the left side to fall upon himself and his companion. How, then, could he recover...