Seaboard Air Line Railway Co. v. DeLoatch

West, J., delivered the opinion of the court. Esther DeLoatch, administratrix of Riddick De-Loatch, deceased, hereafter called plaintiff, brought, action against Seaboard Air Line Railway Company,, hereafter called defendant, to recover damages for negligently causing the death of Riddick DeLoatch. There was a verdict and judgment for the plaintiff in the sum of $1,000.00, to which this writ of error was. awarded. Plaintiff’s intestate, Riddick DeLoatch, was for many years employed by the defendant as a brakeman and switchman. On July 24, 1923, as a member of a train crew upon the defendant’s yards at Franklin, Virginia, he was engaged in switching cars which were being used in interstate commerce. The switch engine was. backing with the tender in front and was pulling cars-which were attached to the front end of the engine.. DeLoatch was on the ground and as the tender, upon, which the conductor in charge of the crew was riding, passed him, at a speed of four miles per hour, theeonduetor signalled him to get upon the tender. He ran with the engine a short distance and caught hold. [341] of the grab iron on the side of the tender and in an effort to step up upon the step his right foot was caught under the wheel of the tender and so crushed across the instep that his foot had to be amputated. This operation was performed in Franklin and he was sent to a hospital in Portsmouth where, four days later, he died as a result of his injuries. It had been raining and the step by the tender was wet. DeLoatch wore rubber boots and had on an overcoat and a raincoat which made it “bunglesome” to step on the engine or tender. Further reference to the facts will be made during the course of this opinion. This action is brought under the Federal employers’ liability act (45 IT. S. C. A. sections 51-59; IT. S. Comp. St. sections 8657-8665). The plaintiff relies upon two alleged acts of negligence on the part of the defendant as grounds for recovery: 1. The conductor, acting as vice-principal, “negligently ordered the deceased to board the moving engine under conditions known to be dangerous and which were the proximate cause of the injury.” 2. The defendant “failed to exercise proper care in providing safe place to work, in that it permitted the step upon which the decedent was required to get, to become bent and notin a reasonably safe condition.” The defendant denies that it was guilty of any negligence and relies upon the contributory negligence of the plaintiff as a defense to the action. The only assignment of error is the refusal of the court to set aside the verdict of the jury and enter judgment for the defendant. The discharge of his duties as brakeman and switchman made it necessary for the deceased to get [342] off and on moving trains. He had been getting up and down upon the same step all day and was necessarily acquainted with its condition and the danger, if any, incident to its use. The burden was on the plaintiff to show that defendant’s negligence was the proximate cause of her intestate’s injuries which resulted in his death. This burden she has failed to carry.. There is evidence that at the time of the trial the iron bars upon which the step is placed were bent slightly on the inside, causing the outward part of the step to slightly incline downward. But this did not warrant the jury in finding that the step was in that condition at the time of the accident, nineteen months prior to the trial. The engine and tender had been sent to the shop for inspection once or twice every month between the date of the accident and the date of the trial. The question at issue was the condition of the engine and tender at the time of the accident, and not at the time of the trial. W. J. Gay, the engineer, testified, without contradiction, that he inspected the step immediately after the accident and found it in perfect condition and up to the requirements of the interstate commerce law (49 U. S. C. A. section 1, et seq.\ U. S. Comp. St. section 8563, et seq.). There is no proof that the deceased’s foot ever touched the step. It is just as probable that he stepped behind the step in front of the wheel of the tender as it is that he placed his foot on the step and it slipped off in front of the wheel. The bars supporting the step were slightly bent, how much we are not told. But the testimony is that the downward incline of the step is so slight that it does not “amount to anything.” It would be impossible for railroads to discharge their duties to the public if they were required during [343] and after every rain, to bring tbeir engines to a standstill before a switchman was allowed to get on or off the train. The conductor was doing nothing out of the ordinary when he ordered plaintiff’s intestate to get aboard the moving tender. In obeying that order plaintiff’s intestate was performing his duty under the terms of his employment. Under his contract he assumed all the risks incident to his employment, j except those arising out of the master’s negligence, which were not “obvious or known to and appreciated by the servant.” S. A. L. Ry. v. Horton, 233 U. S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, Ann. Cas. 1915B, 475. The facts about the condition of the step at the time of the accident are undisputed and must have been known to and appreciated by plaintiff’s intestate, who had been using it all day. Under these circumstances, he assumed all the risks arising out of the master’s negligence, if any. The facts being undisputed, it was for the court to say whether plaintiff’s intestate was or ought to have been acquainted with the risk. Upon consideration of the whole case we do not find sufficient evidence to support the verdict of the jury. The judgment and verdict will be set aside and judgment entered here for the defendant. Reversed and final judgment.