Siemer v. Chesapeake & O. Ry. Co.

Decision Date22 March 1918
PartiesSIEMER v. CHESAPEAKE & O. RY. CO.
CourtKentucky Court of Appeals

Appeal from Circuit Court, Kenton County.

Action by Henry Siemer against the Chesapeake & Ohio Railway Company. Judgment on directed verdict for defendant, and plaintiff appeals. Affirmed.

Robert C. Simmons, of Covington, for appellant.

Galvin & Galvin, of Cincinnati, Ohio, for appellee.

THOMAS J.

Appellant and plaintiff below, Henry Siemer, was a car repairer, and was working as such in the employ of the appellee and defendant in its yards at Covington, Ky. His brother-in-law was working with him, and while repairing a car with one corner of it resting upon a jack set upon two blocks the jack gave way, causing the corner of the car to fall, catching plaintiff's leg under it and crushing it, so that it was amputated below the knee. He filed this suit under the federal statute known as the Employers' Liability Act (Act April 22, 1908, c. 148, 35 Stat. 65 [U. S. Comp. St 1916, §§ 8657-8665]); and sought a judgment against defendant for the damages which he suffered because of the injury which he fixed at $20,000. Upon a trial of the case at the close of plaintiff's testimony the court sustained defendant's motion, directing the jury to return a verdict in its favor, resulting in a verdict for the defendant, upon which judgment was rendered dismissing the petition, and, complaining of the court's action, the plaintiff prosecutes this appeal.

The ground of negligence relied upon was that defendant failed to furnish plaintiff a reasonably safe place in which to perform his work. The answer contained a denial, with affirmative pleas, such as contributory negligence, etc., usually found in such cases. It was denied that plaintiff was at the time of the injury engaged in the work of interstate commerce thus putting in issue his right to maintain the suit under the federal statute.

Four grounds were presented before the trial court, and urged here in support of defendant's contention that it was entitled to a peremptory instruction in its favor; they being: (1) That the plaintiff was not engaged in interstate commerce at the time of the injury; (2) that the evidence failed to show any negligence on the part of defendant; (3) that if there were sufficient proof of negligence, it is not shown that it was the proximate cause of the injury; and (4) that although there might have been negligence which proximately caused the injury, the risk, under the proof, was one which plaintiff assumed. The lower court upheld defendant's contention upon the last two propositions, but overruled it as to the first two. On this appeal both sides are earnestly insisting upon their claims concerning all four of the propositions, the defendant that each of them is correct, while the plaintiff takes a contrary position.

Upon the first two propositions discussed, and which were determined against the defendant by the trial court, the evidence presents substantially these facts: The car being repaired was a freight car, and had been used in both intrastate and interstate traffic. It had become so out of repair that the repairing amounted practically to a reconstruction. It had been placed upon a side track used for the purpose of locating cars to be repaired. Plaintiff and his companion had been at work on it for four days, and according to the proof it would have required about ten days more to complete the work. At the time they were engaged in putting in new sills for the car, having already put in new outside sills, and were preparing to put in new intermediate sills between those on the sides. In order to sufficiently elevate the car for the parties to work under it, it had to be jacked up and false trestles built under each corner, or at sufficient places to hold it up. Three such trestles had been built and the jacks removed, and plaintiff was engaged in building the fourth trestle near the place where the jack was holding up that corner of the car. While thus engaged, from some unknown cause the jack careened, resulting in the car falling and producing the injury. It is shown that up to within about one year before the accident the car repairers cleaned up the ground of shavings, nuts, taps, and other débris and refuse which accumulated on account of the repair work, but since that time this work had been done by other employés whose sole duty it was to clean up after the repairers. There had been a snow, but it had practically all melted, and when plaintiff adjusted his jack at the place where it gave way he cleared away all of the trash and débris from the place, put his blocks on the surface, his jack on top of them, and elevated the car to the proper height. According to his testimony, the ground upon which the blocks were placed was "clean, solid, and all right." He says he saw nothing on the surface except soil, or perhaps cinders, but whether the one or the other the place appeared to be firm, and there was nothing visible to show that is was not a safe place upon which to place the blocks as a foundation for the jack. It is contended that defendant had failed to keep the yards clean of rubbish and débris, as was its duty to do, and that this failure caused some small bolts, nuts, or taps to be imbedded in the ground at the point where the jack was placed, and that this resulted, through the weight of the car, in causing the blocks to slip or in some manner give way so as to cause the car to fall, and because of which the defendant violated its duty to plaintiff in failing to furnish him a safe place in which to do his work.

On the second point as to whether the testimony was sufficient to establish the fact of negligence on behalf of defendant, it is extremely doubtful whether the court was correct in determining that point in favor of plaintiff, and in view of the later decisions from the United States Supreme Court it is equally, if not more, doubtful whether the court was correct in its ruling upon the first proposition as to whether plaintiff was engaged at the time in interstate commerce, but in disposing of this case we do not find it necessary to enter into a discussion of either of those propositions, for we are thoroughly convinced that there is an entire failure to show that the negligence, if any, was the proximate cause of the injury complained of, and since the determination of this point will dispose of the case, whether it be one under the federal statute or under the state law, we have concluded to consider it in the light of the testimony as briefly as possible.

The evidence shows that...

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