Northern Pac. Ry. Co. v. Maerkl

• Decision Date: 05 August 1912
• Docket Number: 2,053.
• Citation: 198 F. 1
• Parties: NORTHERN PAC. RY. CO. v. MAERKL.
• Court: U.S. Court of Appeals — Ninth Circuit

198 F. 1

NORTHERN PAC. RY. CO. v. MAERKL.

No. 2,053.

United States Court of Appeals, Ninth Circuit.

August 5, 1912

A servant assumes the risks incident to the work, but not those occasioned by the master's negligence.

This action was originally brought by George Maerkl, on the 9th of August, 1910, to recover from the plaintiff in error defendant below, damages for personal injuries sustained by him while employed as a car carpenter in repairing a refrigerator car at the railway shops at South Tacoma, Wash. In the construction of such cars the center sills upon which the floor of the car rests are six inches thick, nine inches broad, and run the full length of the car. These center sills rest on other heavy timbers placed crosswise over the trucks called 'needle beams,' and at each end they are mortised into heavy cross-timbers called 'end sills.' The flooring of the car is held on top of the center sills and fastened thereto with heavy spikes or nails. Between the center sills are braces, extending from one sill to the other, called 'packing,' and the sills and packing are then inclosed with a lining, called 'sheathing.' When new center sills are to be placed in a car, the car is placed on one of the heavy repair tracks under the shed in the railway company's yards, and is raised up by means of jackscrews. The trucks are removed, and then the car is ready for the car repairers, who begin their work of dismantling and repairing the car by removing the needle beams, then removing the ceiling, then taking out the packing between the center sills, and then the end sills. When the end sill is removed, if the spikes or nails driven through the floor have broken off, or if the floor was not spiked to the center sills in the first instance, the center sills will necessarily fall of their own weight.

The original complaint alleged, among other things, that the car in question was being used in interstate commerce, and the negligence alleged was in substance that the defendant company furnished the plaintiff another carpenter to work with him, and that while the plaintiff was under the car his fellow workman removed the end sills, whereupon the center sills of the car fell on the plaintiff, inflicting the injuries for which the action was originally brought, and also alleging that the car was improperly constructed, by reason of the fact that the center sills were not fastened to the floor by means of spikes driven through it into the sills, so that, when the end sills and other support to the center sills were removed, the center sills necessarily fell in inflicting the injury referred to.

Maerkl having, by reason of his injuries, died shortly after the commencement of the action, leaving a widow and children surviving him, the widow was appointed administratrix of the estate of the deceased, and thereafter filed, by the permission of the court, what was designated a 'supplemental complaint,' in which were repeated the allegations above mentioned, and which further set out the death of Maerkl as a result of his injuries, and the names of his surviving wife and children, and which also alleged in substance that by reason of his injuries sustained through the negligence of the defendant company, the said Maerkl was damaged in the sum of $5,000, and that by reason of his said injuries and of his death resulting therefrom the said widow and children were further damaged in the sum of $20,000 in being deprived of support by him and of his companionship and comfort.

In its answer to the complaint of the administratrix the railway company denied the alleged negligence on its part, admitted the negligence of Maerkl's fellow servant, and set up as affirmative defenses assumption of risk by Maerkl, his contributory negligence, and the negligence of his fellow servant, to which answer the plaintiff replied, and the cause came on for trial before a jury. Upon the impanelment of the jury the defendant asked the court to require the plaintiff to elect whether she would proceed to try 'the action brought by the deceased during his lifetime for injuries which he received, and which is contained in the amended complaint filed by the administratrix, or whether upon the cause of action brought for damages resulting in the wrongful death of the deceased, and which is brought now by the administratrix and included in the said amended complaint. ' The motion being denied, the defendant company reserved an exception, and assigns the ruling as error. The defendant company also moved the court to dismiss the action on the ground that the plaintiff admitted the negligence of a fellow servant, which motion was likewise denied, with a like exception by the defendant, and assignment of error here.

Upon the close of all of the evidence the defendant asked the court to instruct the jury to return a verdict in its favor, 'for the reason that the evidence fails to prove facts sufficient to entitle the case to go to the jury, and for the reason that the evidence shows that, if the injury was caused by the negligence of any other person than the plaintiff, it was the negligence of a fellow servant, and for the reason that the evidence shows that the plaintiff assumed the risk at the time and place he did, and was also guilty of contributory negligence in failing to exercise ordinary care for his own protection, and for the reason that she cannot maintain this action as administratrix under the evidence and under the law. ' That motion was likewise denied, and an exception taken by the defendant. The jury was then instructed by the court, to which instructions certain objections and exceptions were taken, and the following verdict returned:

'We, the jury impaneled in the above-entitled case, find for the plaintiff, and assess the total damages to be recovered herein at the sum of nine thousand five hundred and seventy-six and 80/100 dollars ($9,576.80), of which the sum of $936.80 is the damages incurred by George Maerkl in his lifetime, and the sum of $8,640.00 is the damages sustained by his widow and children by reason of his death.

'E. B. Judson, Foreman.'

The defendant company subsequently moved for judgment non obstante veredicto, which motion was denied, and the defendant allowed an exception to the ruling.

George T. Reid, J. W. Quick, and L. B. Da Ponte, all of Tacoma, Wash., for plaintiff in error.

Boyle, Warburton & Brockway, of Tacoma, Wash., for defendant in error.

Before GILBERT and ROSS, Circuit Judges, and WOLVERTON, District Judge.

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

It was stipulated by the parties:

'That the car under which George Maerkl, the deceased, was injured, at the time was a Northern Pacific refrigerator car; that the defendant is now, and at the time of the injury of the said George Maerkl was, the owner of a line of railway extending from the state of Wisconsin to the Pacific Coast, and also certain branch lines in the state of Washington, and during said time was transacting an extensive interstate and intrastate business as a common carrier; that in its business as a common carrier refrigerator cars were extensively used indiscriminately in both interstate and intrastate transportation as occasion might arise; and that the car in question had been so used for a long time, and was at the time of the injury of said George Maerkl being repaired by the defendant in its yards for use in interstate and intrastate commerce as occasion might arise.'

The case shows that Maerkl, with three other carpenters, was put to work on the car on a certain Saturday, and that on that day they took down the transoms, needle beams, and ceiling the deceased and one of his coworkers working at one end of the car and the other two at the other end. The following Monday the deceased returned to work upon the car, and while he was underneath it, removing the...