Union Pac. R. Co. v. Marone

• Decision Date: 26 October 1917
• Docket Number: 4883.
• Citation: 246 F. 916
• Parties: UNION PAC. R. CO. v. MARONE.
• Court: U.S. Court of Appeals — Eighth Circuit

246 F. 916

UNION PAC. R. CO. v. MARONE.

No. 4883.

United States Court of Appeals, Eighth Circuit.

October 26, 1917

[Copyrighted Material Omitted]

A. G Ellick, of Omaha, Neb. (Edson Rich, of Omaha, Neb., on the brief), for plaintiff in error.

William F. Gurley and David A. Fitch, both of Omaha, Neb., for defendant in error.

Before SANBORN, CARLAND, and STONE, Circuit Judges.

SANBORN Circuit Judge.

The plaintiff below, Mr. Marone, recovered a judgment against his master, Union Pacific Railroad Company, for an injury to his eye, which he claimed was caused by the negligence of the company, and the company insists that the trial court erred in that it failed to direct a verdict in its favor at the close of the trial. These were the facts: Marone was and had been for some time working for the company as a section man under John Anderson, the foreman of his gang. The company had made and put in force a rule that, 'When cutting rails with a track chisel, those doing this work must wear goggles provided for that purpose,' and had provided suitable goggles, and they were in the toolhouse at Omaha where the accident happened. The company had also provided suitable saws with which to cut rails. There was testimony that the ordinary custom and practice of railroad companies was to cut such rails as the plaintiff was cutting at the time of the accident with saws, and on the other hand there was testimony that the usual custom was to cut them with a sledge hammer or a maul and a chisel, and for the purpose of this decision the former testimony must prevail. A short time before the day of the accident, while Marone was cutting a rail with a sledge hammer and chisel, a piece of steel was chipped off, and it struck him in the wrist. In the afternoon of July 7, 1916, before the accident which happened on that day, the foreman, Anderson, directed Marone and two other members of his gang to cut some rails with a sledge hammer and chisel. Marone told him he wanted something to protect his eyes, because he was scared the other day when he received the piece of steel in his wrist. Anderson answered, 'Go on; that's all right; we never use them. ' Marone testified he went on 'because he was scared to lose his job,' and while he was swinging the sledge hammer to cut the rail with the chisel the piece of steel was chipped off and driven into his eye. Did these facts present any substantial evidence of negligence of the company which caused the injury to the plaintiff?

1. The liability of a master for the personal injuries of his servants is a question of general law; and, in the absence of a state statute, it is not governed in the federal courts by the decisions of the courts of the states, but by the common law and the rules established by the decisions of the Supreme Court and of the other federal courts. Baltimore & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 370, 13 Sup.Ct. 914, 37 L.Ed. 772; Gardner v. Michigan Central R.R. Co., 150 U.S. 349, 358, 14 Sup.Ct. 140, 37 L.Ed. 1107; Beutler v. Grand Trunk Ry. Co., 224 U.S. 85, 32 Sup.Ct. 402, 56 L.Ed. 679; Brooks v. Central Sainte Jeanne, 228 U.S. 688, 694, 33 Sup.Ct. 700, 57 L.Ed. 1025; Railroad Co. v. Lockwood, 17 Wall. 357, 367, 368, 21 L.Ed. 627; Hough v. Railway Co., 100 U.S. 213, 226, 25 L.Ed. 612; Myrick v. Michigan Central Ry. Co., 107 U.S. 102, 109, 1 Sup.Ct. 425, 27 L.Ed. 325; Lake Shore, etc., Ry. Co. v. Prentice, 147 U.S. 101, 106, 13 Sup.Ct. 261, 37 L.Ed. 97; Newport News & M.V. Co. v. Howe, 52 F. 362, 3 C.C.A. 121; Kinnear Mfg. Co. v. Carlisle, 152 F. 933, 936, 82 C.C.A. 81, 84; Illinois Central R. Co. v. Hart, 176 F. 245, 251, 100 C.C.A. 49, 55, 52 L.R.A.(N.S.) 1117; Tweeten v. Tacoma Railway & Power Co., 210 F. 828, 831, 127 C.C.A. 378, 381.

2. Negligence is a breach of duty, and where there is no duty or no breach thereof there is no negligence. The duty of the master is one of provision. The duty of the servant is one of operation, and neither is liable for the negligence of the other. It is the duty of the master to exercise reasonable care to provide a reasonably safe place in which, and reasonably safe machinery or appliances with which, the servants may do the work assigned to them, and for causal negligence in the discharge of this duty the master is liable and the servants are not. It is the duty of the servants to exercise reasonable care so to use the place, machinery, and appliances furnished, so to conduct the operations intrusted to them, as to protect themselves from risk, danger, and injury, and for a breach of this duty the servants are liable and the master is not. Where the place in which the servant is required to work, or the machinery or appliances with which he is required to work, or the method of doing the work, is made or becomes dangerous and results in injury only because of the negligence of the injured employe, or because of the negligence of his fellow servants, or because of the concurring negligence of both, the master is not liable, for such negligence is a breach of the duty of operation and not a breach of the duty of provision. Quebec Steamship Co. v. Merchant, 133 U.S. 375, 10 Sup.Ct. 397, 33 L.Ed. 656; Central Railroad Co. v. Keegan, 160 U.S. 259, 262, 264, 267, 16 Sup.Ct. 269, 40 L.Ed. 418; Northern Pacific R. Co. v. Charless, 162 U.S. 359, 361, 363, 364, 365, 16 Sup.Ct. 848, 40 L.Ed. 999; Northern Pacific R. Co. v. Peterson, 162 U.S. 346, 349, 358, 16 Sup.Ct. 843, 40 L.Ed. 994; Alaska Mining Co. v. Whelan, 168 U.S. 86, 89, 18 Sup.Ct. 40, 42 L.Ed. 390; Northern Pacific Ry. Co. v. Dixon, 194 U.S. 338, 339, 346, 347, 24 Sup.Ct. 683, 48 L.Ed. 1006; Martin v. Atchison, Topeka & S.F. Ry. Co., 166 U.S. 399, 401, 403, 17 Sup.Ct. 603, 41 L.Ed. 1051; Texas & Pacific Ry. Co. v. Bourman, 212 U.S. 536, 539, 541, 29 Sup.Ct. 319, 53 L.Ed. 641; Beutler v. Grand Trunk Ry. Co., 224 U.S. 85, 88, 32 Sup.Ct. 402, 56 L.Ed. 679; St. Louis, I.M. & S. Ry. Co. v. Needham, 63 F. 107, 11 C.C.A. 56, 25 L.R.A. 833; Brady v. Chicago & G.W. Ry. Co., 114 F. 100, 103, 52 C.C.A. 48, 51, 57 L.R.A. 712; Pennsylvania Co. v. Fishback, 123 F. 465, 467, 59 C.C.A. 269, 271; Baltimore & Ohio R.R. Co. v. Baugh, 149 U.S. 368, 13 Sup.Ct. 914, 37 L.Ed. 772; Howard v. Denver & Rio Grande Ry. Co. (C.C.) 26 F. 837; Northern Pacific R.R. Co. v. Hambly, 154 U.S. 349, 14 Sup.Ct. 983, 38 L.Ed. 1009; Grady v. Southern Ry. Co., 92 F. 491, 34 C.C.A. 494; Armour v. Hahn, 111 U.S.

313, 318, 4 Sup.Ct. 433, 28 L.Ed. 440; City of Minneapolis v. Lundin, 58 F. 525, 528, 7 C.C.A. 344; Lach v. Burnham (C.C.) 134 F. 688; Cleveland, C., C. & St. L. Ry. Co. v. Brown, 73 F. 970, 972, 20 C.C.A. 147; Deye v. Lodge & Shipley Machine Tool Co., 137 F. 480, 70 C.C.A. 64; Illinois Central R. Co. v. Hart, 176 F. 245, 251, 100 C.C.A. 49, 52 L.R.A.(N.S.) 1117; Wood v. Potlatch Lumber Co., 213 F. 591-594, 130 C.C.A. 171; Baltimore & Ohio R. Co. v. Brown, 146 F. 24-29, 76 C.C.A. 482; Brooks v. Central Sainte Jeanne, 228 U.S. 688, 693, 33 Sup.Ct. 700, 57 L.Ed. 1025; Dayton Coal & Iron Co. v. Dodd, 188 F. 597, 602, 609, 110 C.C.A. 395, 37 L.R.A.(N.S.) 456; Kelly v. Jutte & Foley Co., 104 F. 955, 44 C.C.A. 274; Olson v. Oregon, etc., Co., 104 F. 574, 575, 44 C.C.A. 51.

The case of Kreigh v. Westinghouse & Co., 214 U.S. 249, 254-258, 29 Sup.Ct. 619, 53 L.Ed. 984, is a striking illustration of this principle. In that case two charges of negligence, one of provision, in that the master failed to rig its derrick 'with two ropes, one attached on either side of the end of the boom, to be used to haul it back and forth, and for the purpose of steadying its operation, or' with a lever attached 'to the mast in such a way that a man operating the lever could control the swing of the boom' (214 U.S. 254, 257, 29 Sup.Ct. 619, 53 L.Ed. 984), the other a negligence of operation, in that the men operating the boom swung a bucket attached to the boom outward against the plaintiff, a fellow workman, without giving him any signal or warning (214 U.S. 255, subds. 2, 3, 29 Sup.Ct. 619, 53 L.Ed. 984), the Supreme Court concluded that the employer was not liable for the latter because it was a negligence of the fellow servants, but that there was evidence of 'experts that the proper construction of such a derrick required that its boom should be rigged with two guy ropes instead of one, or that the mast should be provided with a lever by means of which the men in control could safely operate the boom'; that it was, therefore, a question for the jury whether the injurious effect of the derrick 'was not attributable to faults of construction and equipment, as well as to negligent operation at the time of injury.' That court held that, while the employer was not liable for the negligence of the fellow servants in pushing the bucket against the plaintiff without warning, it might be liable for negligence in the construction and equipment of the derrick if that negligence directly contributed to cause the injury, and closed its discussion of the facts with these words:

'We think that upon this branch of the case it was a question for the jury to determine whether the alleged defective appliances contributed directly to produce the injuries complained of.' 214 U.S. 258, 29 Sup.Ct. 619, 53 L.Ed. 984.

In the earlier part of the opinion it declared the law applicable to the case in this way:

'The employe is not obliged to examine into the employer's methods of transacting his business, and he may assume, in the absence of notice to the contrary, that reasonable care will be used in furnishing appliances necessary to carrying on the business. Choctaw, Oklahoma, etc., R.R. Co. v. McDade, 191 U.S. 64, 68 (24 Sup.Ct. 24, 48 L.Ed. 96). But while this duty is imposed upon the master, and he cannot delegate it to another and escape liability on his

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