Narramore v. Cleveland, C., C. & St. L. Ry. Co.

• Decision Date: 05 July 1899
• Docket Number: 677.
• Citation: 96 F. 298
• Parties: NARRAMORE v. CLEVELAND, C., C. & St. L. Ry. Co.
• Court: U.S. Court of Appeals — Sixth Circuit

96 F. 298

NARRAMORE v. CLEVELAND, C., C. & St. L. Ry. Co.

No. 677.

United States Court of Appeals, Sixth Circuit.

July 5, 1899

In the absence of statutory provision, a switchman employed in the yards of a railroad company assumes the risk incident to unblocked switches and guard rails, where, in general, there are no blocks used in such yards, and the servant has been employed therein for such a length of time that in the exercise of ordinary observation he must have known such fact.

This writ is brought to review a judgment for the defendant in a suit to recover damages for personal injuries sustained by plaintiff while in defendant's employ as a yard switchman in its railroad yards at Cincinnati, Ohio. While plaintiff was attempting to couple two freight cars, his foot was caught in an unblocked guard rail, and in his effort to extricate the foot his right hand was crushed between the drawheads of the cars, and injured so badly as to require amputation. Plaintiff had been in defendant's employ seven months. About one-third of that time he was engaged during the daytime, and two-thirds during the night. He had had nine years' experience as a railroad man. A railroad man of experience can see at a glance whether a guard rail or switch is blocked or not. There were a great many guard rails and switches in the yards where plaintiff worked. With the exception of a few, where experimental blocks were used, the defendant did not use blocks in either its guard rails or switches. Plaintiff said he did not know that the guard rail in which his foot was caught was not blocked, and that he had not noticed whether the guard rails and switches of defendant generally were blocked or not. The plaintiff relied on the following statute of Ohio, passed March 23, 1888 (85 Ohio Laws, p. 105): 'Every railroad corporation operating a railroad or part of a railroad in this state shall, before the first day of October, in the year one thousand eight hundred and eighty-eight, adjust, fill or block the frogs switches, and guard-rails on its tracks, with the exception of guard-rails on bridges, so as to prevent the feet of its employes from being caught therein. The work shall be done to the satisfaction of the railroad commissioner. Any railroad corporation failing to comply with the provisions of this act, shall be punished by a fine of not less than one hundred dollars, nor more than one thousand dollars. ' It appeared from the evidence that the defendant company was operating this railroad at the time of the passage of the act, and has operated it ever since. At the close of the evidence the trial court directed the jury to return a verdict for the defendant on the ground that defendant's failure to block its rails and switches was obvious, and the plaintiff must be held, notwithstanding the statute, to have assumed the risk of injury therefrom, and upon such verdict entered judgment for the defendant.

C. M Cist and Harlan Cleveland, for appellant.

Judson Harmon, for appellee.

Before TAFT and LURTON, Circuit Judges, and THOMPSON, District Judge.

TAFT Circuit Judge (after stating the facts as above).

In the absence of the statute, and upon common-law principles, we have no doubt that in this case the plaintiff would be held to have assumed the risk of the absence of blocks in the guard rails and switches of the defendant. His denial of knowledge of the fact that the particular guard rail causing the injury was unblocked is entirely immaterial. Nor is his vague statement that he was so busy as not to notice whether the rails and switches of plaintiff generally were unblocked in a yard where there were hundreds of guard rails and switches, and in which he was constantly at work for seven months, of more significance or weight. His evidence upon this point is not creditable to him. He could only have been ignorant of the admitted policy of the defendant in respect to blocks through the grossest failure of duty on his part in a matter that much concerned his personal safety and the proper operation of the road. In such a case the authorities leave no doubt that the servant assumes the risk of the absence of the blocks, and the employer cannot be charged with actionable negligence towards him. Railway Co. v. Seley, 152 U.S. 145, 14 Sup.Ct. 530; Appel v. Railway Co., 111 N.Y. 550, 19 N.E. 93; Railway Co. v. Risdon's Adm'r, 87 Va. 335, 339, 12 S.E. 786; Wood v. Locke, 147 Mass. 604, 18 N.E. 578; Railway Co. v. McCormick, 74 Ind. 440; Railway Co. v. Ray (Ind.Sup.) 51 N.E. 920; Rush v. Railway Co., 36 Kan. 129, 12 P. 582; Mayes v. Railway Co., 63 Iowa, 562, 14 N.W. 340, and 19 N.W. 680; Wilson v. Railroad Co., 37 Minn. 326, 33 N.W. 908; Railway Co. v. Baxter, 42 Neb. 793, 60 N.W. 1044; Railway Co. v. Davis, 54 Ark. 389, 15 S.W. 895.

The sole question in the case is whether the statute requiring defendant railway, on penalty of a fine, to block its guard rails and frogs, changes the rule of liability of the defendant, and relieves the plaintiff from the effect of the assumption of risk which would otherwise be implied against him. We have already had occasion to consider in a more or less direct way the effect of the statute. Railway Co. v. Van Horne, 16 C.C.A. 182, 69 F. 139; Railway Co. v. Craig, 19 C.C.A. 631, 73 F. 642. In these cases we held that the failure on the part of a railway company to comply with the statute was negligence per se. A further consideration of the statute confirms our view. The intention of the legislature of Ohio was to protect the employes of railways from injury from a very frequent source of danger by compelling the railway companies to adopt a well-known safety device. It was passed in pursuance of the police power of the state, and it expressly provided, as one mode of enforcing it, for a criminal prosecution of the delinquent companies. The expression of one mode of enforcing it did not exclude the operation of another, and in many respects more efficacious, means of compelling compliance with its terms, to wit, the right of civil action against a delinquent railway company by one of the class sought to be protected by the statute for injury caused by a failure to comply with its requirements. Unless it is to be inferred from the whole purview of the act that it was the legislative intention that the only remedy for breach of the statutory duty imposed should be the proceeding by fine, it follows that upon proof of a breach of that duty by the railway company, and injury thereby occasioned to the employe, a cause of action is established. Groves v. Lord Wimborne (1898) 1 Q.B. 402, 407; Atkinson v. Waterworks Co., 2 Exch.Div. 441; Gorris v. Scott, L.R. 9 Exch. 125. In this case there can be no doubt that the act was passed to secure protection and a newly-defined right to the employe. To confine the remedy to a criminal proceeding in which the fine to be imposed on conviction was not even payable to the injured employe or to one complaining, would make the law not much more than a dead letter. The case of Groves v. Lord Wimborne involved the construction of a statute quite like the one at bar, and a right of action was held to be given thereby to the injured servant in addition to the criminal prosecution. The courts of Ohio have given the statute under discussion the same construction. Railroad Co. v. Lambright, 5 Ohio Cir.Ct.R. 433, affirmed by the supreme court of Ohio without opinion, 29 Wkly.Law Bul. 359.

Do a knowledge on the part of the employe that the company is violating the statute, and his continuance in the service thereafter without complaint, constitute such an assumption of the risk as to prevent recovery? The answer to this question is to be found in a consideration of the principles upon which the doctrine of the assumption of risk rests. If one employs his servant to mend and strengthen a defective staircase in a church steeple, and in the course of the employment part of the staircase gives way, and the servant is injured or killed, it would hardly be claimed that the master was wanting in care towards the servant in not having the staircase which fell in a safe condition. Why not? Because, even if no express communication is had upon the subject, the servant must know, and the master must intend that the dangers necessarily incident to the employment are to be at the risk of the servant, who may be presumed to receive greater compensation for the work on account of the risk. The foregoing is an extreme case, perhaps, but it fairly illustrates the principle of assumption of risk in the relation of master and servant. Assumption of risk is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant's duty shall be at the servant's risk. In such cases the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes or contributes to cause the injury to himself; but the correct statement is that no right of action arises in favor of the servant at all, for, under the terms of the employment, the master violates no legal duty to the servant in failing to protect him from dangers the risk of which he agreed expressly or impliedly to assume. The master is not, therefore, guilty of actionable negligence towards the servant. This is the most reasonable explanation of the doctrine of assumption of risk, and is well supported by the judgments of Lord Justices Bowen and Fry in the case of Thomas v. Quartermaine, 18 Q.B.Div. 685, 695. See, also, language of Lord Watson in Smith v. Baker (1891 App. Cas. 325, and O'Maley v. Gaslight Co., 158 Mass. 135, 32 N.E. 1119. It makes logical that most frequent...