Pittsburgh, C., C. & St. L. Ry. Co. v. Cole
Decision Date | 08 July 1919 |
Docket Number | 3234. |
Citation | 260 F. 357 |
Parties | PITTSBURGH, C., C. & ST. L. RY. CO. v. COLE. |
Court | U.S. Court of Appeals — Sixth Circuit |
Thomas M. Kirby, of Cleveland, Ohio, for plaintiff in error.
A. E Powell, of Cleveland, Ohio, for defendant in error.
Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.
WARRINGTON Circuit Judge (after stating the facts as above).
Certiorari denied 250 U.S. 671, 40 Sup.Ct. 15, 64 L.Ed. . . . .
Ellsworth G. Cole recovered judgment against the railway company in the sum of $5,000 for personal injuries sustained through alleged negligence of the company, and reversal is sought.
At the time the injuries were received, October 6, 1916, plaintiff and two others, Roy Dugan and W. H. Cole (plaintiff's brother), were in the company's employ as repairers of steel cars. This group of persons and other similar groups then working for the company were called 'gangs,' and there is testimony substantially tending to show that one member of each gang was treated by all concerned, including the company, as the leader, the superior in authority, of the particular gang with which he was associated, and that Roy Dugan acted in this capacity with respect to his gang though, it is true, there was a general foreman of the steel car repair department, with an assistant foreman, also a gang foreman, who had charge of certain gangs working on steel cars. Thus the Dugan gang became an important object of inquiry at the trial.
When the accident occurred Dugan had been in the employ of the company some 11 months and the Cole brothers about 6 months. The work of this gang involved the use of an ordinary type of pneumatic hammer designed for riveting sheets of steel. Each of these hammers comprises a cylindrical barrel tapering toward the muzzle, with a grip handle and air connection at the rear end, and a plunger operating lengthwise through the greater portion of the barrel by means of compressed air. The hammers are provided with contrivances of different sizes called 'sets,' each of which consists of a cylindrical head and shoulder, with a cylindrical extension fitting into the muzzle of the barrel and intended to be operated in connection with the plunger. The hammers were operated by one man, who, holding the hammer with the set pressed against the protruding end of the rivet and applying the air, completed the operation of forming another head on the rivet with the aid of a person located on the opposite side of the plates and pressing against the normal head of the rivet a device known as a 'dolly bar.'
The usual course pursued by the Dugan gang when riveting appears to have been as follows: Dugan heated the rivets and put them in place, W. H. Cole operated the hammer, and the plaintiff manipulated the dolly bar. In the afternoon of the accident however, under the order of Dugan, the usual course of work mentioned was changed, so that the plaintiff operated the hammer and W. H. Cole handled the dolly bar. The particular work involved was patching a hopper car. The bottom of the car was wedge-shaped, and the sides of the wedge are called 'hopper sheets'; it was one of these hopper sheets that was being repaired; the car seems to have been on trestles and about three feet above the floor. Dugan placed a heated rivet in one of the holes designed for it, and W. H. Cole pressed it through the two sheets with a dolly bar; this work was done from the outside of the hopper; the rivet stuck, and had to be driven out; whereupon the plaintiff, from the inside of the hopper, attempted and failed to drive the rivet out with a drift pin (an ordinary steel punch) and hammer. It is said that the usual way of driving out such a rivet was through the use of a 'handle drift' and a sledge; but the plaintiff testified that the portion of the car in which he was required to work was so narrow that there was 'not room enough to swing the sledge to hit the hand drift.' Dugan, reaching through an adjacent opening into the hopper, grasped in one of his hands, on which he was wearing a glove, a drift pin and the exposed part of the set held in the hammer, placing the head of the drift pin against the head of the set and the end of the drift pin against the protruding end of the obstructed rivet, and then ordered plaintiff to turn the air into the hammer for the purpose of driving out the rivet. Plaintiff obeyed this order, with the result that the set was driven from Dugan's grasp, and, with the plunger, against the side of the car, so that one or the other rebounded, striking plaintiff under his left eye, and a small piece of steel was driven through this eye. The effect of the injuries was to destroy the left eye and to impair and threaten the sight of the other.
Dugan's gang was the only one at work in or about the repair shop during the afternoon of the injury. The general foreman of the car shop and his assistant, the foreman of the gangs of the car department, together with the gangs themselves, were given the privilege of attending a base ball game in the afternoon, and all availed themselves of the opportunity except the Dugan gang. Dugan testified: 'The plaintiff testified in respect of this occasion: 'No foreman were (was) present except Dugan, foreman of our gang.'
In view of the assignments of error and the contentions presented in support of them, it is important to call attention to the issues made both upon the pleadings and at the trial below. In addition to general allegations of the petition describing the situation and the acts which led to the injuries, plaintiff in substance alleged 'full care and caution' on his part, and that the injury was 'due solely and proximately to the negligent acts and omissions of the defendant': (a) In supplying the pneumatic hammer without a safety spring, which spring would have prevented the set from being driven from the hammer; and (b) in attempting through Foreman Dugan to drive out the obstructed rivet with the air hammer and a drift pin, and in giving the order in that behalf through Dugan, who knew that the order could not be safely obeyed, while plaintiff did not know this, or have equal means of knowledge with either defendant or its foreman giving the order. In its answer defendant admitted its corporate capacity, and operation of the railroad, that at the time in question plaintiff was in its employ and received certain injuries, but interposed a general denial as to every other allegation, and, 'answering further,' said that plaintiff's injuries were the direct and proximate result of risks which were open and obvious, and which were known to and appreciated by plaintiff, or in the exercise of ordinary care should have been known to and appreciated by him, and that 'by reason of the premises the same were assumed.' However, in the course of the trial, both in its cross-examination of one or more of plaintiff's witnesses and in presenting its own testimony, defendant sought to show contributory negligence of plaintiff.
At the close of plaintiff's testimony, and again at the close of all the testimony, defendant presented a motion to direct a verdict in its favor on the ground that there was not 'sufficient proof of actionable negligence to entitle the case to go to the jury,' and that, if there was 'any proof of any negligent act upon the part of the defendant company, a clear case of assumption of risk as a matter of law is made upon the plaintiff's own testimony. ' Both motions were overruled, and it need not be said that defendant's introduction of evidence operated as a waiver of error, if there were any, in denying the motion when it was first presented.
1. We are convinced that the testimony fairly and substantially tends to sustain the allegations of negligence on the part of defendant. In the first place, the testimony shows without denial that the pneumatic hammer, commonly called the 'Little David,' was furnished by defendant for this work and without a safety spring, and that a proper safety spring attached to the hammer would have held the set as well as the plunger in place at the time the air was admitted into the hammer upon Dugan's order. While there is testimony tending to show that at some time, seemingly prior to plaintiff's employment, defendant caused orders to be given orally, possibly amounting to a rule, that employes operating the air hammers should use safety springs with them, yet these orders were not carried out. According to some of defendant's own testimony, the men fell 'into the habit of refusing to use the safety spring,' and the company acquiesced in this practice. The company seems to have contented itself with keeping safety springs on hand, but without furnishing any, except upon the request of an employe. In practice, however, application for a spring or its use was rarely ever made; in a word, it was open to the jury to find that, if the company ever did impose a rule requiring the use of these springs, it knew prior to and at the time of the accident that the rule was not observed-- in truth, that it was ignored. This derives importance in view of the admitted fact that the air hammer plaintiff was operating at the time of his injury was not provided with a safety spring, and of the clear conflict in testimony as to whether he was even instructed as to the need or the use of the spring. Further, plaintiff testified:
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