Southern Ry. Co. v. Lyons

• Decision Date: 19 April 1909
• Docket Number: 1,826.
• Citation: 169 F. 557
• Parties: SOUTHERN RY. CO. v. LYONS.
• Court: U.S. Court of Appeals — Fifth Circuit

169 F. 557

SOUTHERN RY. CO. v. LYONS.

No. 1,826.

United States Court of Appeals, Fifth Circuit.

April 19, 1909

D. P Bestor and B. B. Boone, for plaintiff in error.

Gregory L. Smith and Harry T. Smith, for defendant in error.

Before PARDEE and SHELBY, Circuit Judges, and BURNS, District Judge.

BURNS District Judge.

This suit, commenced in a state court, was removed to the Circuit Court of the United States for the Southern District of Alabama. The action was to recover damages for a personal injury suffered by the plaintiff whilst attempting to mount a defective and crippled engine, known as a 'dead engine,' then being hauled from Mobile to the Selma shops for the purpose of undergoing necessary repairs.

The case was submitted to the jury upon the fifth count of the complaint, which charges, in substance: That plaintiff was in the employ of the Southern Railway Company, charged with the duty of keeping an engine oiled while the same was being pulled by another engine in a train of cars from Mobile to Selma; that at the time of the injury complained of he was acting within the line of his duty under said employment; and that said injury resulted from the defective condition, which condition had not been remedied owing to the negligence of the person in the service of the defendant intrusted by it with the duty of seeing that the same was in a proper condition. The defendant answered by plea of not guilty contributory negligence, and assumption of risk upon the part of the plaintiff. The trial resulted in verdict and judgment for $5,000. The defendant assigns several errors, two of which are treated in the brief and addressed to the refusal of the trial court to direct a verdict in its favor. These assignments will require an examination of the testimony in the light most favorable to the plaintiff.

In the progress of the matter brought here for review, it will not be necessary to state the testimony at any great length. It is sufficient to say that the evidence developed by the record discloses that an engine belonging to the defendant was wrecked in the yards of the company at Mobile, and, as a result thereof, it was ordered to the shops at Selma for repairs.

The plaintiff, who had been in the service of the defendant as fireman for 11 months, was directed to accompany said engine and keep the same properly oiled, etc. He was not directed to ride upon said engine, nor did he do so. As the result of the injuries sustained, the cab, in railway vernacular, was 'side swiped,' and, in the language of one witness it was completely wrecked. Plaintiff saw the engine, and demurred to the request that he attend the same, unless it was made safe. This the foreman promised to do, and his effort in this direction resulted in having the cab entirely removed. The train pulling the crippled or dead engine left Mobile about noon, and the plaintiff took passage on the head engine. At Pennsylvania Station, 14 miles from the starting point, he oiled the engine, and at Mt. Vernon, which was reached at about 4 o'clock in the afternoon, he again oiled the engine and removed from beneath the tender, attached to said engine, some brake rods which had become loose. Thereafter the train crew engaged in some switching, and passing plaintiff, who was standing upon the ground, he concluded that the train was leaving, and, while moving at a speed not to exceed five miles per hour, he attempted to mount the disabled engine, and, with the feed or oil can (about 3 feet long) in his right hand, reached for the handhold on the engine, lost his balance, fell, and received the injuries complained of. The evidence of the plaintiff further discloses that there was a handhold on the tender attached to the engine, and that the cab had two handholds on either side; same being attached to the cab and, of course, removed with it. He further states that he thought the handholds had been replaced, though there was nothing upon the engine to which they could be attached, except the woodwork of the cab. While the witness states that he thought the handholds had been replaced, he also says that there was no promise to do so. The absence of handholds is the sole ground of negligence relied upon.

To questions propounded by the court, the witness answered:

'The foreman (Nash) told me to go along with this engine and keep it oiled--keep the running gear oiled.

'Q. He employed you to go along and oil this broken engine? A. Yes, sir.

'Q. The cab was destroyed? A. Yes, sir.

'Q. And that part that had the handhold gone? A. Yes, sir.

'Q. Did you go on that engine at any time here in Mobile? A. No, sir; I was not on it.

'Q. You saw the condition of the cab? A. I saw the cab torn off.

'Q. And that handhold gone? A. Yes, sir.

'Q. The one on the tender still there? A. Yes, sir.'

It appears that the engine was, with reference to the cab and handhold, in the same condition at Mt. Vernon, where the injury occurred, as when last seen by the plaintiff before leaving Mobile.

From the facts in this record, it conclusively appears:

1. That the defendant was not guilty of any act, or omission, which would constitute negligence, and therefore the plaintiff would not be entitled to recover.

2. That plaintiff knew the defective condition of the engine, this condition being the sole cause of sending the engine to the general repair shops at Selma, and under every principle and authority the plaintiff assumed the risk incident to the patent and obvious defects in the engine, and particularly that caused by the absence of the handholds. He knew that the handholds were attached to the cab--'there was nothing else to attach them to'-- and he knew that both cab and handholds had been removed before he left Mobile. To say that he thought they had been replaced is but to give rein to the imagination. With like propriety he might have thought that the cab had been replaced. The law charges him with the knowledge of defects so patent and plainly obvious.

The plaintiff is 24 years of age, has had adequate experience in the service, and, according to his testimony, was daily engaged in getting on and off engines. From the record we gather that he was not only experienced, but a man of intelligence. That a cause of action is not given to an injured employe, unless it first appears from the allegations and proof that the employer is guilty of negligence,...