Peirce v. Clavin

• Decision Date: 04 October 1897
• Docket Number: 382.
• Citation: 82 F. 550
• Parties: PEIRCE v. CLAVIN.
• Court: U.S. Court of Appeals — Seventh Circuit

82 F. 550

PEIRCE v. CLAVIN.

No. 382.

United States Court of Appeals, Seventh Circuit.

October 4, 1897

An instruction making it the absolute duty of the master to provide reasonable and safe appliances, instead of to use reasonable care to furnish such appliances, is erroneous; but the error is harmless where the defect complained of is so obvious, and of such long standing, that a failure to remedy it was manifest negligence.

The defendant in error, William M. Clavin, brought action in trespass to recover of the plaintiff in error for damages sustained to his person on the 25th day of December, 1895. Clavin on the 4th day of June, 1895, entered the service of the receiver of the Toledo, St.Louis & Kansas City Railroad Company as a switchman in the railroad yards at Madison and East St. Louis, in the state of Illinois. He was not a member of any regular crew, but was an extra man, required to take the place of any one of the crew who might be absent from his work. A single track led from the Madison yard to the East St. Louis yard, passing over a short trestle, beyond which in the East St. Louis yard, delivery tracks to connecting roads, six in all, branched out from it to the south; the first of them being known as the 'belt' or 'Wiggins' Ferry' track, the other five being numbered from 1 to 5, consecutively. The switch stand and lever operating the switch to the Wiggins' Ferry track was situated at the west end of the trestle, north of the lead or main track. This switch was a ground switch. It was worked by a lever pivoted in the switch stand a short distance from the rail, and was operated at right angles to the rail. The end or handhold of the lever was in the shape of a loop 7 inches long, 2 1/2 inches wide, and was originally designed to drop between the ties when thrown over towards the rail, and to rest upon the ground, which would bring the top of it below the level of the tie, the loop or handhold being from 8 to 12 inches distant from the rail. In March, 1895, the lever of the switch had become bent, from being caught in the tank step of a switch engine. This caused the handhold, when the lever was thrown towards the rail, to rest upon one of the ties, exposing the whole of the handhold above the level of the ground. At about 4:30 p.m. on the day of the accident, the crew with which Clavin was then working brought a train of cars from the Madison yard for delivery in the East St. Louis yard, 15 cars of which train were to be delivered to the 'bridge track,' and the remaining 20 in the lower yard. Clavin was on top of one of this string of 20 cars, and, when the engine first went into the lower yard this string was kicked or pushed down over the trestle Clavin bringing them to a stop, and the engine then delivered the 15 cars to the 'bridge yard,' and returned, and was reattached to the string of cars on which Clavin was working. Clavin cut off two cars, and, as the engine was pushing them forward, ran ahead, to throw them upon the Wiggins' Ferry track. He threw the switch in question, that the cars might run in upon the Wiggins' Ferry track. To do this he was obliged to catch the handhold, lift the lever, and throw it away from the rails. This he did, setting his foot upon it, to press it down. The two cars passed over the switch. Clavin gave the engineer the signal to stop, and immediately upon the passage of the cars threw the lever back, resetting the switch for the lead or main track, and again putting his foot upon it to bring it down into place. The next car was to be delivered to what is known as the 'house track,' Clavin went to where the train stood, gave the engineer a signal to go ahead, stepped in between the last two cars to pull the pin, walking with one foot over the rail between the moving cars. He found the pins in the drawbars of both cars jammed, and was in the act of stepping out from the car to get a tool with which to knock them out, when in passing over the switch in question his foot caught in the handhold, which rested upon the tie, and he was thrown to the ground in front of the truck, one car passing over his left hand, nearly severing it at the wrist, rendering amputation necessary. Clavin, while in the service of the receiver, had worked with the crews of both yards,-- that is, with the crews that delivered east-bound freight to the Madison yard and west-bound freight into the East St. Louis yard. The condition of the switch was known to most of the crews, but its condition had never been reported. On an average of once a day, cars were delivered to the East St. Louis yard, and placed upon the various delivery tracks, passing over and using the switch in question. Clavin, while he was in the service of the receiver, had been a member of the East St. Louis crew for six whole days. He had also worked for a considerable period with the night crew, doing work in both the upper and lower yards.

At the conclusion of the evidence, the court was requested to direct a verdict for the defendant, which request was overruled, and an exception reserved. A number of instructions bearing upon the question of assumption of risk were requested by the plaintiff in error to be given in charge to the jury, which were refused, and which are not necessary to be here stated but are considered in the opinion of the court. To the charge of the court to the jury the following errors, so far as it is deemed necessary to state them, are assigned: First. 'The defendant undertook, by the law of the land,-- not...