Tennessee Coal, Iron & Ry. Co. v. Currier

SHELBY, Circuit Judge, after stating the case as above, delivered the opinion of the court. The contentions of the plaintiff in error, when analyzed, are, in effect, that the trial court should have instructed the jury to find for the company, because (1) the facts proved did not show negligence-on the part of the company; and (2) that, if the company was negligent, the defendant was guilty of contributory negligence. In ■ [23] examining these propositions we must remember that if there is uncertainty, on all the evidence, as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and is to be settled by the jury'; and this is true whether the ■uncertainty arises from a conflict of testimony, or because, the facts being nndisjrated, fair-minded men .may honestly draw different conclusions from them. A case should not be withdrawn from the jury unless the conclusion follows, as matter of law, that no recovery can be had upon any view which can be properly taken of the facts the evidence tends to establish. Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745; Nelson v. Railroad Co., 40 C. C. A. 673, 100 Fed. 731. The plaintiíf, Currier, ivas at work in the coal mines of the com-pam. He, of course, assumed the apparent risks and dangers incident to his employment. But it is clearly the duty of the emjfloyer to use reasonable care to see that the appliances, implements, and cars furnished the employd with which to work are safe and flt for (he purposes for which (hey are intended. Railway Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188; Railway Co. v. Murray, 42 C. C. A. 334, 102 Fed. 204. The evidence shows that Currier was employed to drive a tram car used in carrying coal out of the mine-. When first emjdoyed, the boss driver went one trip with him. He was instructed to sit on the car and drive. There was a low place in the mine, Where the driver had to sloop to pass under, lie had to bend forward, with his face close to his knees. In this way he passed under safely. Currier drove in this way for several weeks. Other drivers wore accustomed to drive in the same way. The company, through iis agent or superintendent, furnished the cars and sent them to the slope where Currier was at work. On the 19 th of July, 1898, after Currier had been at work several weeks, while driving under the low place, riding and stooping in the usual way, he was knocked off the car by the rock forming the roof of the mine. It was immediately apparent that the car on which he was riding (a new7 car sent in for use that day for the first time) was higher than the other cars. It was so high, in fact, that a driver sit ting and stooping on it «raid not safely pass under the low place. The company had knowledge, or was chargeable with knowledge, of the oondiiicn and construction of its tram cars, and whether or not ¡hey were so constructed iliat they could be safely used in the mines. These facts, we think, to say the least, so tended to show negligence on the part of the company as to make the question proper to be submitted to the jury. Railway Co. v. Eckman, 42 C. C. A. 344. 102 Fed. 274. Was the plaintiff so clearly guilty of contributory negligence as to make it improper to submit the case to the jury? It' is true that he knew of the sloping or low place in the mine. He knew of the difficult ies in passing under it with the cars in use. It is urged that by ordinary observation he could have seen that 1lie car- on which lie was hurt ivas higher Ilian the others. The evidence, or at least part of it, tended to show that it was necessary for him to ride on the car, so as to furnish the mule light from his lamp attached to his cap. The mule was drawing two cars, the high one being in [24] front. He was following the custom of riding on the front car. There was evidence tending to show that,the driveway was so obstructed at the sides that he could not have walked at the side of the car. There was much evidence tending to show that it was not practicable to walk and perform the duties imposed on him. But, aside from this, granting that he could tell that the new car was higher than the others in use, and that he did discover the fact, we think that he had the right to assume that, although it was higher than the others, it was not so high as to make its use dangerous. The employé may assume that the employer observes reasonable care in selecting the appliances furnished. We do not think that the learned judge in the trial court erred in refusing to instruct the jury, as matter of law, that the plaintiff was guilty of contributory negligence. The judgment of the circuit court is affirmed.