Worthington v. Elmer

• Citation: 207 F. 306
• Decision Date: 22 July 1913
• Docket Number: 2,335.
• Parties: WORTHINGTON v. ELMER.
• Court: U.S. Court of Appeals — Sixth Circuit

207 F. 306

WORTHINGTON v. ELMER.

No. 2,335.

United States Court of Appeals, Sixth Circuit.

July 22, 1913

C. A Seiders, of Toledo, Ohio, for plaintiff in error.

C. A Thatcher, of Toledo, Ohio (G. B. Keppel, of Toledo, Ohio, of counsel), for defendant in error.

Before WARRINGTON, KNAPPEN, and DENISON, Circuit Judges.

WARRINGTON Circuit Judge (after stating the facts as above).

The first assignment of error is based upon the denial of a motion made at the close of all the evidence, without specifying any distinct ground, to direct a verdict for the company.

1. Any consideration of the facts contained in the statement will show that the decedent, the fieldman, was confronted at night, in the yard of the company, with the duty of boarding one of two moving cars for the purpose of preventing them from colliding with cars standing some 400 feet beyond. This duty grew out of a custom so to operate cars in making up trains. The evidence tends to show that the cars were moving at an unusually rapid rate of speed; that, if the brakes of both cars had been in good condition, two such cars moving at a rate of eight to ten miles an hour (and the evidence as a whole does not tend to show they were going that fast) could be stopped in about five car lengths; and that the brake of one of the cars was in such disrepair that it could not be effectively operated. Whatever may be said of the opportunity of decedent, either before or at the time he boarded the oil car, to estimate the speed of the cars and the feasibility of stopping them (despite their unusual speed) within the distance available, his efficiency and good judgment were attested: (1) By his success in mounting the oil car; and (2) by the proof that the cars could have been controlled if the brake of each had been in order. There is not the slightest evidence that he had any reason to suspect that the brake of either of the cars was out of repair.

However it is urged that 'there is no evidence that Rice was using the defective brake. ' He was seen operating the brake of the oil car but was not seen alive thereafter. The defective brake of the box car was immediately in front of him when he was setting the brake of the oil car, and his lantern stood close to him on the platform. The record is silent as to his movements between the time of setting the oil car brake and the collision. It is hard to conceive, in view of the distance between the point at which he boarded the car and the location of the standing cars, in connection with the close proximity of the brake on the box car, that there was not time for an experienced brakeman both to set the oil car brake and try to set the other brake. Everything that he was seen to do was in the prompt performance of acknowledged duty. Is it to be said, then, that he failed in so important a matter as at least to try to use the brake of the box car? That was the very next and the last step to be taken in the discharge of his duty; and his own safety as well as that of both the moving and standing cars depended upon his performance of that duty.

It is settled in this court that on the defendant's motion to direct it was the duty of the court to take the most favorable view of the plaintiff's evidence (Erie R.R. v. Weber & Kraft, 207 F. 293, decided June 3, 1913; Tennessee Copper Co. v. Nevada Gaddy, 207 F. 297, decided on the same day), 'and from that evidence, and the inferences reasonably and justifiably to be drawn therefrom, determine whether or not, under the law, a verdict might be found' for the plaintiff (Mt. Adams & E. P. Inclined Ry. Co. v. Lowery, 74 Fed.at page 477, 20 C.C.A. 596, by the present Mr. Justice Lurton; see, also, L. & N.R.R. Co. v. Bell, 206 F. 395, decided by this court June 30, 1913).

From the facts just pointed out and the most natural and reasonable inference deducible therefrom, it was entirely justifiable to conclude that Rice continued in the performance of his duty respecting the brake on the box car between the time he was seen setting the opposite brake and the collision. As was said in Maguire v. Fitchburg Railroad, 146 Mass. 379, 15 N.E. 904, respecting the evidential effect of finding a deceased employe's body at a place where his duty had called him:

'The jury might well have believed that he was on the track in the performance of his duty and in the exercise of all the care to be expected of a prudent man.'

See, also, Caron v. Boston & Albany Railroad, 164 Mass. 523, 525, 526, 42 N.E. 112.

This is in principle like the presumption of performance of duty, which, in the absence of evidence to the contrary, is indulged in favor of one who is injured at a railroad crossing; that is, that he stopped, looked, and listened before attempting to cross. Baltimore & Potomac R.R. v. Landrigan, 191 U.S. 461, 472, 474, 24 Sup.Ct. 137, 48 L.Ed. 262; P., C., C. & St. L. Ry. Co. v. Scherer, 205 F. 356, decided by this court May 6, 1913; Gates v. Beebe, 170 Mich. 107, 112, 135 N.W. 934. The principle so alluded to is applicable under other and varying circumstances, where there is an absence, as here, of direct testimony on the subject in dispute. Prince v. Lowell Electric Light Corp., 201 Mass. 276, 281, 87 N.E. 558; Brown v. Coal Co., 143 Iowa, 662, 673, 120 N.W. 732, 28 L.R.A.(N.S.) 1260; Gilbert v. Ann Arbor R. Co., 161 Mich. 73, 79, 125 N.W. 745. It follows that the motion to direct was rightly overruled.

2. Although the defense of assumption of risk is not set up in the answer, it appears to have been considered in the trial court, and it has been strenuously pressed upon our attention. We infer that counsel was permitted to present this defense at the trial, under two requests which were refused and upon which error is assigned. In one of these requests the court was asked to instruct the jury that a verdict could not be rendered on account of a defective brake, because there was 'no evidence that Rice was using the defective brake'; and in the other that the verdict must be for the defendant 'if the evidence shows that it was customary to kick cars at that place at a speed as great or greater than was used at the time of this accident.' Thus it was sought to have the cars treated as having been in all respects in good repair and as running at a speed not unusual; and so it was claimed that, under the custom of the yard, Rice assumed the risk...