Gulf S.I.R. Co. v. Hales

*833 Anderson, J., delivered the opinion of the court. The appellee, E. B. Hales, brought this action against appellant, Gulf & Ship Island Railroad Company, in the circuit court of Simpson county, to recover damages for an injury received by him while engaged about his duties as a servant of appellant, and recovered a judgment for five thousand dollars, from which appellant prosecutes this appeal. Appellant was engaged in interstate commerce, and appellee was likewise employed at the time of the latter’s injury. The federal Employers’ Liability Act (IT. S. Comp. St., sections 8657-8665) therefore applies, and with it the doctrine of the assumption of risks. Appellant assigns as error the action of the trial court in refusing to direct a verdict in its favor. In determining the propriety of that action of the court, the evidence must be treated as proving every material fact of appellee’s case which it either proves directly or by rea *834 sonable inference. So viewing the evidence, appellee made substantially the following case: He was employed by appellant in tbe capacity of a carpenter in its bridge gang. His foreman was Ike Farmer. • His only co-worker at tbe time of Ms injury was H. C. Slade. Under tbe direction of appellant’s foreman, appellee and bis co-worker Slade were engaged in repairing one of appellant’s water tanks on its line of railroad, from which its locomotives were accustomed to take water. The repair work in which they were engaged was putting new staves in the water tank, and tightening up the hoops around the tank, and otherwise mending it so that it would hold water. The materials for the repair work had previously been unloaded at the tank. Among the repair materials was lumber for making a ladder to be used by the workmen in going up on the platform on which the water tank sat. The piers to the water tank sat on uneven ground. On the side where the ground was highest it was about twelve feet from the ground to the platform on which the tank rested. There was a decline to such an extent that on the opposite side of the tank the distance from the ground to the platform was about sixteen or seventeen feet. The foreman directed appellee and his co-worker to make a ladder from the materials furnished by, appellant, to be used in the progress of the work in going from the ground to the platform and back. The upright pieces out of which the ladder was constructed were only twelve feet in length. Appellee complained to appellant’s foreman that the ladder should be longer. The latter said it was long enough, and directed appellee to use it in the work of repairing the tank. Appellee’s injury was received by him at a time when his co-worker was inside the tank at work, and appellee was going down the ladder to the ground from the platform on which the tank sat. He was coming down with his back to the ladder, stepping on each rung in going-down. While thus engaged the ladder rocked from side *835 to side, causing Ms foot to miss a rung, which resulted in a wrench, of his leg backward so violently as to throw his knee out of joint. Appellee bases liability on three grounds, first, that he was furnished an unsafe place to work, in that the ground around the tank was uneven and the ladder furnished him with which to do the work was too short to properly reach from the ground to the platform on which the tank rested, causing the ladder to rock, which resulted in the injury; second, that appellant failed to furnish a sufficient number of helpers to'do the work; that if appellant had complied with its duty in that respect there would have been a servant of appellant present to hold the ladder in place as appellee was descending it ; third, that his injury was caused by the negligence of his co-worker, Slade, in that the latter had moved the ladder from where it was when appellant went up on the platform of the tank to another place where the ground was uneven and unsafe, resulting in the injury. With reference to the first ground, the unsafety of the place, taking the evidence most strongly in favor of appellee, it amounted to simply this, that this water tank sat on uneven ground, and that the foreman in charge of the work directed appellant and his co-worker to make a ladder to be used in the work which was too short to be used on the low ground. Appellee admitted on cross-examination that if they had desired they could have spliced the ladder and made it longer. When the injury occurred one end of the ladder rested on the ground and the other end on the. platform which supported the tank. That was the purpose for which the ladder was provided. The ladder was rocking from side to side, but there is nothing in the evidence to show that it fell. Appellee saw its condition. He could not shut his eyes to it. In fact, as stated above, he and his co-worker made the ladder themselves, and to that extent made their own place to work. This was such character of work as that the place occupied by appellee in his work neces *836 sarily changed as the work progressed. If there was any defect in the ladder on account of its length, and if the place which was made up of the ladder and the ground it stood on and the platform of the tank it leaned against was unsafe, it was made so, at least in part, by appellee and his co-worker, and its condition was plainly obvious to both of them. The second ground of negligence relied on, that appellant failed to furnish a sufficient number of helpers to do the work safely, is urged with little force. Prom the character of the work being done it is at once evident that two servants skilled in the work could do it as well as a dozen or more and probably better. In fact we are unable to understand how one skilled workman could not have done the work as well as a dozen. The additional time taken, it seems, would he the only difference to be considered. The third ground relied on, that the injury was caused by the negligence of appellee’s co-worker, Slade, in replacing the ladder on unsafe ground, is wholly unsupported by the evidence. The evidence taken most strongly for appellee simply shows that the ladder was standing on uneven ground, and rocked as appellee came down it, which caused him to lose his foothold and receive the injury complained of. The ladder was long enough to and did touch the ground below and rest on the tank above. Appellee’s co-worker, Slade, had used the ladder as he had placed it in going up on the platform. It answered his purpose. There was no evidence to show that when appellee missed his foothold and received the injury that the ladder fell. There is nothing to show that if the ladder had been longer it would not have rocked. The condition of the ground and the ladder was plainly * obvious to appellee as he was descending to the ground. The supreme court held in Pryor et al. v. Williams, 254 U. S. 43, 41 S. Ct. 36, 65 L. Ed. 120, that in an action governed by the federal Employers ’ Liability Act, where the injuries resulted from plaintiff’s being furnished and *837 using an obviously defective claw bar for drawing bolts, there was no liability because appellant knew of and assumed the risk of the defective claw bar. In Seaboard Air Line v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas, 1915B, 475, it was held under the federal Employers’ Liability Act that when the employee knows of a defect in an appliance used by him and appreciates the resulting dangers, and continues in the employment without objection or without obtaining from his employer an assurance of reparation, he assumes the risk even, though it may arise from the employer’s breach of duty. Applying that principle the court held that a defect in a water gauge, of which the engineer had knowledge before the accident resulting therefrom, was such a defective appliance as that the risk of the dangers therefrom were assumed by plaintiff. And in Southern Pac. Co. v. Seley, 152 U. S. 145, 14 S. Ct. 530, 38 L. Ed. 391, being an action to recover from a railroad company damages for the death of a servant resulting from catching his foot in an unblocked frog while coupling ears and while in that condition being run over by a car, as the evidence showed that he had been in the employ of the defendant for several years as brakeman and as conductor of freight trains, that his duty took him frequently into the railroad yards in question to make up his trains, that he necessarily knew of the form of the frog there in use, and it was shown that he never complained to the railroad company of the character of frogs used by it, the court held he must be deemed to have assumed the risk of the danger from such unblocked frogs. The case of St. L. & S. F. R. R. Co. v. Snowden, 48 Okl. 115, 149 P. 1083, is especially illuminating on the subject of the. assumption of risk under the federal Employers’ Liability Act. The grounds of liability on which the plaintiff sought to recover in that case were (1) failure of the defendant to furnish a full crew; (2) failure of defendant to furnish plaintiff assistance in storing freight inside of a car. The court said that the work *838 was simple, and whatever risk and dangers existed were obvious, that the manner of the work and the surroundings, including the place of work and the number of hands furnished, were known by the plaintiff; that he voluntarily accepted employment knowing all those facts and assumed the risks incident thereto; that he was bound to use his eyes to see that which was open and apparent, and, if he failed to do so, he could not charge the consequences to the master. Applying these principles to the alleged failure of appellant to furnish a safe place to work as well as a sufficient number of co-workers, we think it inevitably leads to the conclusion, under the undisputed facts of this case, that appellee assumed whatever risk there was resulting from such failure. It was a case where the servant knew he was to have only one helper, and he knew the character of the place, including the character of the ground and the ladder, in fact, a case where the place in which appellee was doing his work was constantly changing as the work progressed, which changes were necessarily brought about in a large measure by appellee and his co-worker. With reference to the other ground of recovery, namely, the alleged negligence of Slade, appellee’s co-worker, in moving the ladder to another place from where it was when appellant last used it in going upon the platform of the tank, we think is without substantial support in the evidence. No negligence is shown on the part of Slade, the co-worker, in the changing of the ladder from place to place; he was only doing that which was necessary to be done in order to carry on the work. That was a part of the work. If the ground was more uneven and the place more unsafe where Slade placed the ladder than it was at the place from which it was removed, that constituted no act of negligence. The evidence shows that the lower end of the ladder stood on the ground, and the upper end rested on the platform of the tank, and that as appellee came down he missed his foothold and *839 received the injury because the ladder rocked. It is evident that on account of the unevenness of the ground, ranging from twelve to sixteen feet below the platform of the tank, it would have been very difficult to place the ladder where it would not have rocked to some extent. There is nothing’ in the evidence to show that the ladder would not have rocked had it been longer. We are of opinion that appellant has fallen short of sufficient evidence to go to the jury on either of the grounds of alleged negligence relied on. Reversed and judgment here.- On Suggestion oe 'Error. The action of this court in rendering a final judgment for appellant is assigned as error. Appellee’s contention is that this court was without authority of law to render a final judgment, contrary to the verdict of the jury in the court below; that in' doing so the Seventh Amendment to the Constitution of the United States was violated. That amendment provides, in substance, that in suits at common law where the value in controversy shall exceed twenty dollars the parties shall have the right of trial by jury, and that no fact tried by a jury shall be re-examined in any court of the United States except according to the rules of common law. To sustain appellee’s position Slocum v. New York Life Ins. Co., 228 U. S. 364, 33 S. Ct. 523, 57 L. Ed. 879, Ann. Cas. 1914D, 1029, and Pedersen v. D., L. & W. R. R. Co., 229 U. S. 146, 33 S. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153, are relied on. Both of those cases originated in federal courts, and were dealing with the practice and procedure in those courts. They hold, as appellee contends, that a federal court of review on appeal cannot render final judgment contrary to the verdict of the jury in the trial court. But they have no application to the practice and procedure in the state courts even in causes arising under a federal statute, as in the present case. *840 The Seventh Amendment of the Federal Constitution is. addressed 'alone to the federal courts. It has no application to the state courts. M. & St. L. R. R. Co. v. Bombolis, 241 U. S. 211, 36 S. Ct. 595, 60 L. Ed. 961, L. R. A. 1917A, 86, Ann. Cas. 1916E, 505; 1 Roberts, Federal Liability of Carriers, section 427; Edwards v. Elliott, 27 Wall. 532, 22 L. Ed. 487; Pearson v. Yewdall, 95 U. S. 294, 24 L. Ed. 436; Eilenbecker v. District Court, 134 U. S. 31, 10 S. Ct. 424, 33 L. Ed. 801; Spies v. Illinois, 123 U. S. 131, 8 S. Ct. 21, 22, 31 L. Ed. 80. It was held in the Bombolis case that the requirement of the Seventh Amendment of the Federal Constitution that trials by jury be according to the course of the common law, one step in which was the requirement of a unanimous verdict, did not control the state courts even when enforcing rights under the federal Employers’ Liability Act, and that the state courts could therefore give effect in actions under that statute to the local practice of permitting less than a unanimous verdict. The practice in this state of rendering a final judgment in this court for the appellant in a case where the trial court should have directed a verdict in appellant’s favor is a matter of practice and procedure. It does not affect the substantive law of the case. The practice does not abridge the substantive rights of the parties under the federal Employers’ Liability Act (IT. S. Comp. St., sections 8657-8665). It is the method under our law of administering that act in the courts of this state which is not affected in any manner whatever by the practice and procedure in the federal courts. The argument of the other assignments of error is simply a reargument of the questions argued on the former hearing. We see no reason to change our views as expressed in the opinion handed down. Overruled.