Southern Ry. Co. v. Derr
| Decision Date | 06 March 1917 |
| Docket Number | 2836. |
| Citation | 240 F. 73 |
| Parties | SOUTHERN RY. CO. v. DERR. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Caruthers Ewing, of Memphis, Tenn., for plaintiff in error.
Jere Horne, of Memphis, Tenn., for defendant in error.
Before KNAPPEN and DENISON, Circuit Judges, and SESSIONS, District judge.
In an action brought by Derr, in the court below, against the railway company, it appeared that Derr was employed by it to assist in transferring, from one car to another, a steam boiler which was being transported in interstate commerce. Jurisdiction rested upon the federal Employers' Liability Act. The two cars were set alongside each other, upon slightly diverging tracks, so that the cars were 3 feet apart at one end and 8 feet apart at the other. The defendant's foreman directed Derr and other laborers to take two pieces of ordinary 56-pound rail, which lay in a pile of used rails in the yard, and place them, as skids, upon the two cars, so as to slide the boiler across upon them. When the boiler was about midway, the rail with the longer span broke and Derr received the injury for which he sought to recover. Against defendant's objection that there was no evidence tending to show negligence, the court submitted that issue to the jury, which found for Derr; and whether this ruling is correct is the only issue to be considered.
The bill of exceptions contains all the evidence; and the case is remarkably barren of the proof usual in such cases. The distance spanned by each rail does not appear. No witnesses competent to speak expressed an opinion that such a rail was too small to carry this boiler, nor that it was in any degree likely to become unfit for that purpose because it had been used, nor that the presence of a section of such a rail in a pile in a yard indicated that it was likely to have been used to such an extent as to affect in the least its ability to resist a breaking strain. One piece of the rail, displaying the break itself as exhibited looking in one direction, was put in evidence and is a part of the bill of exceptions. The question, therefore, was whether, from the fact that the rail broke, from the fact that it was a used rail, selected without very careful inspection, from looking at the broken end, and with the aid of only common knowledge as to what inferences might be drawn from these facts, the jury was authorized to find that there was negligence.
That negligence cannot be inferred merely from the fact of disaster is too firmly established as a general rule to call for citation of authority, beyond a reference to Patton v. Railway, 179 U.S. 658, 21 Sup.Ct. 275, 45 L.Ed. 361. The burden is on the plaintiff to establish, by proof, that negligence did exist. Whether any exception exists which justifies applying to this case the rule res ipsa loquitur or any analogous principle, will be hereafter discussed. There was no oral evidence as to whether this rail had been used much or little. Such wear as appears upon the tread conveys to the ordinary man no safe indication as to the extent of use. It is a matter of common knowledge that rails which have been used in one place are transferred and used in other places with safety for years and that a 56-pound rail will carry a great weight. Track use of a rail may tend to cause crystallization or develop latent defects, so that it will be more unsafe than a new rail to use as a skid; or track use may demonstrate its soundness and freedom from latent defects, and so make it more suitable for this use than a new rail would be. Aided by proper testimony a jury could judge which of these theories should be rightly applied in a particular case; without such testimony, it can only guess. So of inspection of such a rail to be used for such purposes. The standard of reasonable care may require that such a rail, before being devoted to such a use, should be looked at carefully, foot by foot, on all sides, or should be sounded, foot by foot, or otherwise tested; but we cannot think a jury may, without any evidence, infer the duty to make some such test from the mere fact that the rail has been used upon the track. Perhaps men of experience might draw that inference; the ordinary man cannot safely do so.
Unless a rail of this size was too small for this use, or unless a rail might be unfit merely because it had been used, then there was no negligence, unless the defect which caused the...
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