Shankweiler v. Baltimore & O. R. Co.
| Decision Date | 08 November 1906 |
| Docket Number | 1,529. |
| Citation | 148 F. 195 |
| Parties | SHANKWEILER v. BALTIMORE & O.R. CO. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Chas Koonce, Jr., for plaintiff in error.
A. E Foote, for defendant in error.
Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.
On May 16, 1904, the plaintiff in error, a brakeman at work in the yards of the defendant company at New Castle Junction, Pa was thrown from a box car by the breaking of a brake rod, run over, and lost a leg. The defendant company is a Maryland corporation, and was at the time engaged in operating a railroad partly in Pennsylvania and partly in Ohio. The accident occurred in Pennsylvania, of which state the brakeman was a citizen. When it occurred, the brakeman was standing on a shelf or small platform located at the end of the car, about 3 feet below its roof and 10 or 12 feet above the ground. He had given two or three turns to the brake wheel when the rod broke. The rod was defective; there being at the point of fracture an old break, shown by the rust extending about half way through, but this defect was covered and concealed by the ratchet wheel and the floor of the platform, it being at a point on the rod within or just below the ratchet wheel.
The evidence was clear that no visual inspection would have discovered this defect. To disclose the same, it would have been necessary to strip or remove the brake rod from its place. A visual inspection of the car, including the brake rod had been made a short time before the accident occurred. This inspection was such a is usually made by well-regulated railroads operating in Pennsylvania and Ohio while a car is in transit. The officers in charge of the inspection of cars on a number of such railroads were witnesses, and they testified, without exception, that a visual inspection of the brake rod when in place is all that is ever made while the car is in use, and that to strip the brake rod or remove it from its place, so that every part might be open to the eye, is impracticable; for, if ordinary care require such an examination of the brake rod, it would require a similar examination of every rod, chain, or iron used on the car, which would cause such delay as seriously to cripple the operation of trains. There was some testimony to the effect that, if the inspector had set the brake hard enough before the accident, he might have disclosed the defect by breaking the rod himself. This seems obvious, but there was no testimony that such a method of testing brake rods was in use or could be relief upon as effective A. No, sir. Q. Didn't you write Mr. Nourse that you believed that you would the court below directed a verdict for the defendant.
The plaintiff in error contends that the case should have gone to the jury for two reasons: First, because the Ohio act of April 2, 1890, applied, making a prima facie case in favor of the plaintiff; and, second, because, in view of the evidence, the question should have been submitted to the jury whether there had been a proper inspection of the brake rod. Section 1 of the act of April 2, 1890 (87 Ohio Laws, p. 149), contains certain regulations for the protection of railroad employees, which are made applicable to any company operating a railroad in whole or in part in Ohio and section 2 provides that it shall be unlawful for-- Any such corporation to knowingly or negligently use or operate * * * any car or locomotive on which the machinery or attachments thereto belonging are in any manner defective. If an employee of any such corporation shall receive any injury by reason of any defect in any car or locomotive, or the machinery or attachments thereto belonging, * * * such corporation shall be deemed to have had knowledge of such defect before and at the time such injury was so sustained, and when the fact of such defect shall be made to appear in the trial of any action in the courts of this state, brought by such employee, or his legal representatives, against any railroad corporation for damages, on account of such injuries so received, the same shall be prima facie evidence of negligence on the part of such corporation.'
It is submitted on the authority of Pennsylvania Co. v McCann, 54 Ohio St. 10, 42 N.E. 768, 31 L.R.A. 651, 56 Am.St.Rep. 695, that the presumption of knowledge and negligence provided by this section applies in the...
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Canadian Northern Ry. Co. v. Senske
... ... standard which shall, in effect, dictate the customs or ... control the business of a community.' ... In ... Shankweiler v. Baltimore & Ohio R. Co., 148 F. 195, ... 197, 198, 78 C.C.A. 353, 355, 356, the plaintiff had been ... injured by the breaking of a brake-rod ... ...
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Baltimore & OR Co. v. O'NEILL
...evidence with the result that the plaintiff as a matter of law failed to make out a case to go to the jury. Shankweiler v. Baltimore & O. R. Co., 6 Cir., 148 F. 195; Dierks Lumber & Coal Co. v. Brown, 8 Cir., 19 F.2d 732; Gray v. Baltimore & O. R. Co., 7 Cir., 24 F.2d 671, 673-674, 59 A.L.R......
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