Pennsylvania R. Co. v. Forstall

• Decision Date: 07 January 1908
• Docket Number: 46.
• Parties: PENNSYLVANIA R. CO. v. FORSTALL.
• Court: U.S. Court of Appeals — Second Circuit

159 F. 893

PENNSYLVANIA R. CO. v. FORSTALL.

No. 46.

United States Court of Appeals, Second Circuit.

January 7, 1908

Robinson Biddle & Benedict (N. B. Beecher, of counsel), for plaintiff in error.

D. R Almy, for defendant in error.

Before LACOMBE, COXE, and NOYES, Circuit Judges.

NOYES Circuit Judge.

This was an action to recover damages for personal injuries received by the plaintiff, an employe of the defendant through its alleged negligence. The plaintiff having recovered judgment in the court below, the defendant has brought this writ of error. We may conveniently consider the questions raised in the order of the points in the defendant's brief.

The defendant's first point is that a verdict in its favor should have been directed, because the plaintiff assumed the risk. The inquiry under this point necessarily involves an examination of the facts from a viewpoint most favorable to the plaintiff. We may therefore state the following as facts which the jury were warranted in finding from the evidence.

The plaintiff was employed by the defendant in its Brooklyn yard as a brakeman, but with certain additional duties with respect to the placing of cars. At the time of the accident he was riding on the rear end of a switch engine, which was 'drilling' cars. The tracks in the yard had such sharp curves that it was impossible for cars to pass around them with ordinary couplings. To obviate this difficulty the rear end of this switch engine was fitted with a push pole eight feet in length, fastened so as to project horizontally, and prevented from swinging too far to each side by chains attached to an iron collar around the pole. This collar was worn, and before the accident had sometimes slipped upon the push pole. When it slipped, it permitted the pole to swing farther to each side than was intended. It slipped immediately before the accident, and this time the pole swung so far off the track-- the engine going around a curve-- as to come in contact with a car upon an adjoining track. The pole was thus forced back upon the plaintiff, squeezing his leg, and causing the injuries complained of. The collar upon the push pole had been in a defective condition for some months previous to the accident. The plaintiff had tried in various ways to prevent its slipping, but without effect. About a month before the accident he complained to the defendant's agent, his superior, about the trouble, and the agent promised that the collar would be fixed the next time the engine went to New Jersey. The engine was sent to New Jersey, but nothing was done to the collar. A few days after this promise was made the plaintiff injured his hand, which prevented him from performing his regular duties. He was about the yard, but did not work on this engine until just before the moment of the accident. It did not appear that the plaintiff, when he then went upon the engine, knew that the defendant's agent had failed to keep his promise to repair the collar.

These facts fall short of showing that the plaintiff was assuming the risk at the time of the accident. Even if his knowledge of the defect amounted to knowledge of the danger, so that he once had assumed the risk, his position was changed by the defendant's promise to repair. The jury were warranted in finding that after this promise was made the plaintiff continued in his employment relying upon it, and not taking upon himself the risk. This he had a right to do. He was justified in remaining a reasonable time for the promised repairs to be made. If he knew that they were not made within such time, he took his chances if he remained longer. But such knowledge is not shown. As we have seen, it does not appear that the plaintiff, when he returned to work upon the engine immediately before the accident, knew that the defendant had failed to keep its promise to repair. There can be no inference that the plaintiff did not rely upon the performance of the promise, and assumed the risk, unless he knew that the promise had not been fulfilled.

The defendant's second point is that the trial court erred in refusing to charge, as requested, that:

'If the plaintiff knew that the pole was out of order, and if more than a reasonable time to repair it had elapsed after he notified the defendant before the accident, and no

...