Yazoo & M.V.R. Co. v. Long

• Decision Date: 07 January 1913
• Docket Number: 2,238.
• Parties: YAZOO & M.V.R. CO. v. LONG.
• Court: U.S. Court of Appeals — Sixth Circuit

201 F. 881

YAZOO & M.V.R. CO. v. LONG.

No. 2,238.

United States Court of Appeals, Sixth Circuit.

January 7, 1913

Fitzhugh & Biggs and Thos. A. Evans, both of Memphis, Tenn. (C. N Burch, of Memphis, Tenn., of counsel), for plaintiff in error.

Anderson & Crabtree, of Memphis, Tenn., for defendant in error.

Before KNAPPEN, Circuit Judge, and SATER and SESSIONS, District judges.

KNAPPEN Circuit Judge.

Defendant in error (plaintiff below) recovered verdict and judgment against plaintiff in error (as defendant below) on account of injuries alleged to have been received by plaintiff while in defendant's employ as brakeman.

Plaintiff's testimony tended to show that while attempting, in the discharge of his duty, at one of defendant's terminals to climb to the top of a standing freight car, he reached up to seize the handhold or grabiron which should be upon the top of the car; that in his then position he could not see the top of the car, nor whether the handhold was there; that the handhold was in fact gone, with the result that plaintiff lost his footing (recovering himself, however, before reaching the ground), his abdomen striking 'the handhold and (on?) the side of the car,' causing hernia and other permanent injuries.

Defendant's alleged negligence with respect to maintaining this handhold was the only ground of liability submitted to the jury; and an instruction was given that no recovery could be had if the handhold was there at the time of the accident. Defendant introduced evidence that at and before the time of plaintiff's injury the customary method of inspection at defendant's terminals, as well as at those of other railroad companies, was to observe from the ground whether there were any apparent defects in the roof (which was visible from the ground), and if the roof looked sound and all right, and the bad order card showed nothing wrong with the roof, to make no further inspection.

Plaintiff had had several years' experience in railroad operation and had at one time been in the service of the Interstate Commerce Commission as safety appliance inspector. A few days before the accident, he had sustained a similar fall through lack of a grabiron on the top of a car. He testified that in his previous railroad experience he had frequently found grabirons missing from roofs of cars. In a letter written after the accident he said:

'Car inspectors say they were not supposed to go on top of cars to inspect them, so that is why these things are not seen.'

On this evidence the defendant contended that plaintiff had assumed the risks incident to defendant's method of inspection, and asked for direction of verdict accordingly. This being refused, an instruction was asked (likewise refused) that if defendant had a method of car inspection which did not include inspection of the roof grabirons, and that this method of inspection was known to the plaintiff, the latter 'assumed this method of work,' and could not recover on account of defendant's failure to inspect the roof irons.

We think these requests were properly refused. We are unable to agree with defendant's contention that this case falls within the rule that an employe by entering and continuing in the employment assumes the risks arising from methods of work which he knows, or by the exercise of reasonable care should have known, to be dangerous. The case here presented does not involve the method of carrying on the work in which the employe is engaged, but the exercise of care by the employer in the performance of his duty to furnish the employe reasonably safe appliances or a reasonably safe place with or in which to work.

The object of an inspection is to ascertain the actual existence of dangerous conditions, as preliminary to their removal.

Defendant primarily owed plaintiff the duty of using due care, by way of reasonable inspection, to discover whether the handholds were in safe condition; and it is elemental that plaintiff had the right to presume that defendant would make a reasonably sufficient inspection of the car.

The question whether the inspection actually made was in fact reasonably sufficient would ordinarily be one of fact for the jury. Felton v. Bullard, 94 F. 781, 37 C.C.A. 1. Whether or not plaintiff's knowledge that the method of inspection regularly used by defendant was insufficient to disclose all defects reasonably ascertainable called upon him to exercise greater care in looking out for his own safety the contention that he thereby assumed all risks resulting from an insufficient inspection, and absolutely relieved defendant therefrom, is, we think, contrary to reason and unsupported by authority. The effect of such contention would be to impose pro...