Republic Elevator Co. v. Lund

• Decision Date: 13 May 1912
• Docket Number: 3,678.
• Parties: REPUBLIC ELEVATOR CO. v. LUND et al.
• Court: U.S. Court of Appeals — Eighth Circuit

196 F. 745

REPUBLIC ELEVATOR CO. v. LUND et al.

No. 3,678.

United States Court of Appeals, Eighth Circuit.

May 13, 1912

Cobb &amp Wheelwright, John I. Dille, and F. A. Stewart, for plaintiff in error.

Francis B. Hart (Thomas D. Schall, on the brief), for defendant in error Lund.

Emerson Hadley, for defendant in error, Northern Pac. R. Co.

Before SANBORN, ADAMS, and CARLAND, Circuit Judges.

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

From the foregoing brief statement of the case it appears that the only question for our consideration is whether the court erred in declining to direct a verdict for the Elevator Company. This involves the inquiry whether the verdict as rendered is supported by substantial evidence.

The Elevator Company was engaged in the usual work of such companies at or near the yards of the Railway Company. Its elevator building was located on tracks of the Railway Company leading on a downgrade from its yard on the north to another part of its yard on the south. The practice was when the Railway Company desired elevation services for it to deliver cars to the Elevator Company by placing them on this inclined way near its upper or northern end subject to the control of the Elevator Company to be taken down by it to the elevator either by cable or gravity as the case might be whenever it was ready to perform the service. If the same was for unloading, the practice was to stop the car at the proper leg of the elevator, unload the same, and afterward take it out of the way, down to the lower yard. This was done by directing an employe to mount the car, unloosen the brake and ride it down the grade, and, on reaching the proper destination, tightening up the brake and stopping it.

On the morning of the accident in question two cars chained together, one loaded and placarded 'in bad order' and the other unloaded, were brought down to the elevator, and the loaded car was stopped at one of the legs of the elevator to be unloaded. After this was done, plaintiff was directed by the foreman in charge of the Elevator Company's work to ride the two down to the lower yards. He mounted the first car, namely, the one which had been unloaded, loosened the brake, another employe having, according to the usual practice, simultaneously set the cars in motion with a pinch bar, and started down the grade. The plaintiff testified that, when he undertook to stop the car or to exercise control over it, his brake refused to work, and the car, notwithstanding his best efforts to stop it, dashed against another car in the lower yard, threw him off, and seriously injured him.

The foreman of the Elevator Company testified that immediately after the accident he inspected the car and found the brake in 'bad shape' as he called it. He found the chain attached to the lower end of the brake-shaft was all taken up, and would tightly about the shaft, thereby forcing the end of the rod extending between the chain and the brake beam against the shaft itself, effectually preventing any further action of the brakes or exertion of power upon the brakes. He testified that the rod was either broken or disconnected from the brake shoes so that it could not operate upon them at all. There was also testimony of others to the contrary effect, namely, that the brake and connecting rod were found to be in perfect condition immediately after the accident. Was this testimony sufficient to take the case to the jury? We think it was.

It is first suggested that plaintiff admitted that the brake was properly set when he first mounted the car and undertook its manipulation.

Lund was apparently an ignorant man, and in answering questions categorically on cross-examination admitted that the brake operated in the usual way when he first loosened it to start down the grade; in other words, that, when he turned the wheel and apparently released the brake, which had before then been set to stop the car at the elevator, the car started down and there did not seem to be anything wrong with it, but in connection with this evidence he says, as soon as he tried to set it again, it would not work. We think this proof is not at all inconsistent with the contention of the plaintiff. It may well be that the car would start when the pinch bar was applied to the wheel upon the mere unwinding of the chain around the brake shaft, and yet might not be stopped on account of the defective brake appliance complained of.

It is also contended that there was no evidence of negligence except the occurrence of the accident itself. If that were so, inasmuch as the principle expressed by the maxim res ipsa loquitur has no application to cases between the employer and employe, no case would have been made against the defendant. Chicago & N.W. Ry. Co. v. O'Brien, 132 F. 593, 67 C.C.A. 421. But the facts already detailed do not warrant the contention. There was, in our opinion, substantial evidence that the brake rod had either been broken or disconnected from the brake shoes prior to the time of the accident, and that the Elevator Company might by the exercise of ordinary care have ascertained that fact. The evidence tends to show that the car had been inspected by the Railway Company in its own yard four days before the accident and found in good condition, but this is evidential only of its condition on the day of the accident, and must be considered in connection with all the other evidence in the case in determining the ultimate fact whether there was culpable negligence by the defendant in not ascertaining the defective condition of the brake, and directing the plaintiff to operate it as it was.

Again, it was contended that the plaintiff assumed the risk of being hurt while in this particular employment. The trial judge charged the jury that the Elevator Company owed the duty to plaintiff, its employe, to exercise reasonable care to furnish him a reasonably safe appliance with which to perform his service. He carefully advised the jury concerning the effect of the inspection claimed to have been made by the Railway Company, and that it was available to the Elevator Company as tending to show the exercise of the required reasonable care by it.

On the subject of plaintiff's assumption of the risk he charged as follows:

'If you believe that a reasonably prudent workman would have discovered the defective condition of the car, considering all the plaintiff's experience, considering the whole course of business in that yard, considering the outward indications of a defective condition on the car itself, this car being marked 'bad order,' I say, considering all these circumstances, if you say that a reasonably prudent workman employed in the performance of the service which the plaintiff was employed in performing, would have discovered that defect, then it was the duty of the plaintiff to discover it. He assumed the risk of any injury arising from such a defect, that could thus be detected; and, if the defect was of such a character, that ends the case, and it would be your duty to return a verdict in favor of the defendants.'

In this part of the charge the court imposed an unwarrantable burden on the plaintiff. The law is well settled that an employe may rest confidently in the assurance that his employer has performed his full duty in furnishing him a reasonably safe place to work in or reasonably safe appliances to work with, and that no obligation is imposed upon him to exercise any degree of diligence to affirmatively ascertain whether his employer has performed that duty. The employe assumes the ordinary risks of his employment, but does not assume those arising from the negligence of his employer, unless the defects constituting the negligence are either known to him or plainly observable by him. This is the settled doctrine of the Supreme Court and of our court. Texas & Pac. Ry. v. Archibald, 170 U.S. 665, 672, 18 Sup.Ct. 777, 42 L.Ed. 1188; Choctaw, Oklahoma, etc., R.R. Co. v. McDade, 191 U.S. 64, 68, 24 Sup.Ct. 24, 48 L.Ed. 96; Texas & Pacific Ry. Co. v. Swearingen, 196 U.S. 51, 62, 25 Sup.Ct. 164, 49 L.Ed. 382; Kreigh v. Westinghouse, etc., Co., 214 U.S. 249, 255, 256, 29 Sup.Ct. 619, 53 L.Ed. 984; Schlemmer v. Buffalo, etc., Ry. Co., 220 U.S. 590, 596, 31 Sup.Ct. 561, 55 L.Ed. 596; Kirkpatrick v. St. Louis & S.F.R.R. Co., 87 C.C.A. 35, 159 F. 855, 858; United States Smelting Co. v. Parry, 92 C.C.A. 159, 166 F. 407; Central Coal & Coke Co. v. Williams, 97 C.C.A. 597, 173 F. 337; Maki v. Union Pac. Coal Co., 109 C.C.A. 221, 187 F. 389; Chicago, Burlington & Quincy R. Co. v. Shalstrom (C.C.A. 195 F. 725, just decided.

In Texas & Pacific Ry. v. Archibald, the Supreme Court said:

'The employe, on the other hand, has the right to rest on the assumption that appliances furnished are free from defects discoverable by proper inspection, and is not submitted to the danger of using appliances containing such defects because of his knowledge of the general methods adopted by the employer in carrying on his business, or because by ordinary care he might have known of the methods and inferred therefrom that danger of unsafe appliances might arise.'

In that case the Supreme Court expressly disapproved of an instruction which imposed upon the employe the necessity of exercising ordinary care to ascertain whether his employer had been negligent in furnishing him defective cars.

In Choctaw, Oklahoma, etc., R.R. Co. v. McDade, the Supreme Court said:

'The employe is not obliged to pass judgment upon the employer's methods of transacting his business, but may assume that reasonable care will be used in furnishing the appliances necessary for its operation. This rule is subject to the exception that, where a defect is known to the employe or is so patent

...