Southern Ry. Co. v. Hobbs

• Decision Date: 15 October 1929
• Docket Number: No. 2864.,2864.
• Citation: 35 F.2d 298
• Parties: SOUTHERN RY. CO. v. HOBBS et al.
• Court: U.S. Court of Appeals — Fourth Circuit

35 F.2d 298 (1929)

SOUTHERN RY. CO. v. HOBBS et al.

No. 2864.

Circuit Court of Appeals, Fourth Circuit.

October 15, 1929.

John M. Robinson, of Charlotte, N. C., for appellant.

H. L. Taylor, of Charlotte, N. C. (T. L. Kirkpatrick, of Charlotte, N. C., on the brief), for appellee Hobbs.

E. T. Cansler, of Charlotte, N. C. (Cansler & Cansler, of Charlotte, N. C., on the brief), for appellee Ford Motor Co.

Before PARKER, Circuit Judge, and GRONER and SOPER, District Judges.

GRONER, District Judge.

J. B. Hobbs, the plaintiff below, was employed by the Southern Railway Company as an extra switchman, and was injured on the evening of December 9, 1926, while at work on the top of a freight car then being moved in interstate commerce by the railway company from within the Ford Motor Company's plant at Charlotte, N. C. He sued the railway company and the Ford Company as joint tort-feasors, and at the trial recovered judgment against the railway company alone.

This is an appeal by the railway company, in which both Hobbs, the plaintiff below, and the Ford Company, joint defendant below, are made appellees. The Ford Company has moved to dismiss the appeal as to it. The facts are these:

In 1924 the Ford Company constructed a plant at Charlotte, N. C. At its request, and at its expense, the railway company built a spur track from its main track to the plant. From this point to a point some 900 feet inside the building, the track was constructed by the Ford Company, and at the same time the Ford Company constructed a line of light fixtures, suspended from the ceiling of the building and immediately over the center of the track. It was customary for the railway company to deliver daily to the Ford Company a number of loaded cars, which were backed by an engine into the building, unloaded and reloaded, and then removed by the railway company for delivery to destination. The injury is alleged to have occurred when the cars were being moved out of the plant. The operation of moving the cars generally occurred after dark, and was accomplished by backing the engine up to the string of cars, which it was intended to haul out of the building.

There were two switchmen. One followed the engine, and the other would walk back along the sides of the cars to be certain that the couplings were made and that the brakes were off. When this was done, he would give a signal to the engine, and the movement out would begin; the switchman generally mounting the rear car, and riding out on the train. On the night of the injury it was Hobbs' duty to see to the couplings and the release of the brakes. When the engine, with three cars attached, had been backed up and coupled to the car nearest the entrance to the building, Hobbs started back towards the "butting block," where the last car of the string was located, and, having reached that point and ascertained that the forward movement was in order, gave the signal and the train was immediately put in motion. Hobbs testified that he climbed on the top of the car, and had walked some 8 or 10 feet forward, when a light fixture, attached to the ceiling over the center of the track, struck him in the face and knocked him out of balance, and before he could catch himself he was thrown across the rear end of the car and onto the track, as a result of which he sustained serious injuries.

The theory of the plaintiff's case was that, although plaintiff had been in the plant on four or five occasions prior to the time of his injury, he neither knew of nor had been warned of the danger of coming in contact with the ceiling lights while standing on the top of a moving car; that the lights were not lit, and the place itself was dark; that at the time of his injury he was riding on a car considerably higher than the ordinary car, and that by reason of this fact, when he straightened up and walked forward, as was usual and proper, the distance between the walkway on top of the car and the bottom of the fixture was not sufficient for his clearance, and his injury resulted. The railway company defended on the ground that the plaintiff was familiar with the way and manner in which the track was constructed, the work was done, and the lights were located, and that, with such knowledge, plaintiff voluntarily continued to work, and thereby assumed the risk of injury, and also that he was guilty of contributory negligence in not taking reasonable and proper care and caution for his own safety, and in failing to observe his surroundings and so conducting himself as to avoid injury. On these conflicting issues, the case was submitted to a jury, who found against the railway, and judgment was rendered accordingly.

The railway has filed 20 separate assignments of errors, relating almost wholly to the charge of the court to the jury, and an additional ground for reversal based upon the alleged inconsistency of the verdict and judgment in releasing the Ford Company, and at the same time holding the railway company solely responsible for the injury. We have carefully considered the various exceptions to the charge to the jury given by the learned district judge, and we think the charge as given fairly stated the law applicable in the circumstances, and was as favorable to the defendants as they, or either of them, might properly ask.

The first three assignments are predicated on the refusal of the court to direct a...