Williams v. Choctaw, O. & G.R. Co.

• Decision Date: 05 December 1906
• Docket Number: 1,555.
• Citation: 149 F. 104
• Parties: WILLIAMS v. CHOCTAW, O. & G.R. CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

149 F. 104

WILLIAMS v. CHOCTAW, O. & G.R. CO. et al.

No. 1,555.

United States Court of Appeals, Sixth Circuit.

December 5, 1906

E. G Bell, for plaintiff in error.

E. E Wright, for defendants in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

RICHARDS Circuit Judge.

This was a suit brought by Williams, the plaintiff below, against the defendant railroad companies, to recover damages for injuries received in the yards at Memphis, Tenn., while employed as foreman of a switch engine and crew. At the time of the accident Williams was on the rear end of the tender. The train was backing, so he was in front of it. Attached to the rear of the tender was a footboard. The night was cold and freezing. He desired to get off the train to deliver some bills and to see that a switch was all right. As he went to get off, his foot slipped on the footboard and he fell under the train, losing one leg and having the other badly mangled. He claimed in his petition that the footboard and the tank above it were defective; the footboard because the L-shaped irons which supported it at the rear of the tank, were bent inward, giving it a dangerous slope, and the tank because it leaked, allowing the water to trickle down on to the footboard, where it froze, creating an icy, slippery surface. Williams claimed he was not aware of the condition of the footboard, and, relying upon the companies having used ordinary care in providing a reasonably safe place and appliances for his use, stepped upon it, when the accident resulted without his fault. The court below directed a verdict for the defendants on the ground either that Williams knew or ought to have known of the condition of the footboard, and assumed the risk of using it, or was guilty of contributory negligence in using it under the circumstances or both.

The rule is well settled that, where a motion is made to direct a verdict, the court must take that view of the evidence most favorable to the party against whom the direction is requested. In this case, Williams was entitled to receive the benefit of all fair and reasonable inferences from the testimony. Railway Co. v. Lowery, 20 C.C.A. 596, 74 F. 463; Mason v. Yockey, 43 C.C.A. 228, 103 F. 265; Riley v. L. & N.R.R. Co., 66 C.C.A. 598, 133 F. 904. It appears from the record that Williams was an experienced railroad man. He had been employed in the business for some 18 years, first as brakeman, and latterly as foreman of the switch engine and crew. As foreman he had charge of the switch engine and crew. The tender, with its appurtenances was deemed a part of the switch engine. It was the duty of the engineer to inspect the engine each day when he took it out, reporting any defects, and it was also the duty of Williams to report any defects he might observe, either in the engine or the cars; but he was not obliged to inspect either. This engine had been in use in and about Memphis for about a month, and Williams had charge of it and the crew during that time. The accident occurred on the 27th of December. For two or three days before that date it had been raining, and on that date it turned cold, and in the afternoon began to freeze. The engineer, who had been in charge of the engine from the time it reached Memphis, testified that he had observed the slope in the footboard and the leak in the tender from the first, but did not report them, because he did not think they were dangerous. One of the brakemen, whose station was at the rear of the tender, testified that he had observed the slope and leak, and that an experienced man could tell, from stepping on the footboard, that it was sloping. Williams stated he had not been on the footboard the day of the accident prior to its occurrence, or for several days before, because it was raining and he rode in the cab. He admitted having been near the footboard on numerous occasions, and did not deny having been on it prior to the day of the accident, but testified he was not aware of the existence of the slope or the leak. He conceded it would have been his duty to report these defects if he had observed them, but contended it was the duty of the engineer both to inspect and to report, and, since the engineer did not report them, he insisted he had a right to rely upon the footboard being in a reasonably safe condition.

Conceding that the primary duty of inspection rested upon the engineer as the representative of the railroad companies, and that he should have reported these defects, so that the companies might have discharged their duty to use ordinary care to keep the footboard reasonably safe for the use of their employes including Williams, nevertheless it was the duty of Williams, as a servant engaged in a hazardous occupation, to employ his faculties, as reasonably prudent men do, to ascertain the condition of the machinery and appliances provided for his use. In the case of...