Boston & M. R. Co. v. Gokey

COXE. Circuit Judge. The plaintiff, a brakeman in the employ of the defendant, was, while in the discharge of his duties, struck by the target of a switch and thrown to the ground from a moving freight car. He received injuries which resulted in the amputation of one of his feet three inches above the ankle. The switch which caused the accident was located in the freight yard at Lyndonville, Vt., having been placed in position but a few weeks prior to the accident. The dangerous proximity of the target to the track was unknown to the plaintiff as he testified that he had never operated it in its changed location or been warned regarding it. It was so near the track that while in the act of climbing up the ladder of the moving car to release a brake, with his back to the switch, he was caught by the target and hurled to the ground. In other words, there was not room enough to permit the body of a brakeman in that position to pass in safety. It cannot be successfully maintained that the danger from such a structure was one of the ordinary risks assumed by the plaintiff on entering the defendant’s employ. The law imposed upon the defendant the duty of furnishing for the use of its servants fit and suitable means and appliances. The jury found that the defendant failed to perform this duty; they found, in effect, that the defendant furnished an unsafe switch with the target so located that it served as a trap in which employés, ignorant of its position, might be caught and killed oi injured. Whether such a structure was one reasonably safe and [44] proper to be maintained at the place described was a question of fact and was presented to the jury under instructions as favorable as the-•proofs warranted. The same statement is true as to the alleged contributory negligence of the plaintiff. It cannot be said, as matter of law, that he was at fault in not ascertaining the situation in time to avoid contact with the target. The peril was not so obvious as to justify the trial court in imputing negligence to the plaintiff in failing to discover it. In the absence of notice or knowledge to the contrary he had a right to assume that, when in the discharge of his duty he was required to mount a moving car, he would not be hurled to the ground by a target placed so near the car that his body could not pass in safety. At least it was a question for the jury. The case is an exceedingly simple one upon the facts, involving questions which are constantly arising in negligence cases; these questions were properly sent to the jury under instructions which fairly presented the conflicting contentions of the parties and, after a careful examination of the record, we fail to find any error which warrants us in reversing the judgment. We are unanimously of the opinion that the trial was fairly and impartially conducted and that the verdict, considering the irreparable injury to the plaintiff, was a moderate one. We refrain from discussing the jurisdictional question argued at the bar and in the briefs, for the reason that this court since its organization has uniformly held that the act creating the Circuit Courts of Appeal confers no authority upon these courts to pass upon questions challenging the jurisdiction of the Circuit Courts. Act March 3, 1891, c. 517, 26 Stat. 826 [U. S. Comp. St. 1901, p. 547]. Section 5 of the act (26 Stat. 827 [U. S. Comp. St. 1901, p. 549]) provides that writs of error may be taken direct to the Supreme Court in any case in which the jurisdiction of the Circuit Court is in issue, and section 6 (26 Stat. 828 [U. S. Comp. St. 1901, p. 549]) provides that the Circuit Courts of Appeal shall have jurisdiction in all cases except those provided for in section 5. This court has no appellate jurisdiction except such as is conferred by statute and we have been unable to perceive how the statute can be logically construed to beátow upon us a right which is expressly conferred on the Supreme Court and is expressly withheld from us. U. S. v. Lee Yen Tai, 113 Fed. 465, 51 C. C. A. 299; Fisheries Co. v. Lennen, 130 Fed. 533, 65 C. C. A. 79; Penn. Lumberman’s Ins. Co. v. Meyer, 126 Fed. 354, 61 C. C. A. 254; in s. c. 197 U. S. 407, 25 Sup. Ct. 483, 49 L. Ed. 810; Sun Printing Ass’n v. Edwards, 194 U. S. 377, 24 Sup. Ct. 696, 48 L.Ed. 1027; U. S. v. Jahn, 155 U. S. 109, 15 Sup. Ct. 39, 39 L. Ed. 87; Halpin v. Amerman, 138 Fed. 548, 70 C. C. A. 462. The judgment is affirmed, with costs.