Lane Bros. v. Couch

DENISON, Circuit Judge (after stating the facts as above). [1] The event demonstrated that the stakes were not sufficient. This does not, of itself, support an implication of negligence; but the conclusion of th¿ jury from all the facts that there was negligence must stand,unless for lack of sufficient legal foundation. We think there was abundant testimony tending to show a lack of due care, and tending to show that the stakes were not reasonably sufficient, in number or quality, or both. The testimony established or tended to establish that the track was very rough, so that the car would get violent lurches; that these were not ordinary ties, but were heavy timbers, requiring strong side supports; that there should have been two or three standards on each side against each of the three tiers, while in fact there was, opposite one of the tiers, only one standard; and that the stakes furnished were weak. [511] [2] We think, also, there was no presumption of contributory negligence required to he drawn from the fact that Couch was standing in the gangway. [3] These considerations aside, there remains the question whether the matter of providing this car with side standards pertained to the employer’s duty to furnish suitable cars, properly constructed and equipped, and so to a nondelegable duty, or whether it pertained to the loading of the cars, and so would bring into action the fellow servant rule. If the former, the case w'as properly submitted to the jury; it might be otherwise, if the case was of the latter class. If we had to do only with the matter of staying the tops of the respectively opposite standards, by wire or by crosspiece, that might involve only the loading operation; but this record is not so shaped as to present that question by itself. A car must be provided fairly suitable to the uses to which it is to be put. There may be no sides, as in the ordinary flat car carrying dirt, or partial sides of varying shapes and heights, as in the gondola cars, or complete sides, inclosed, as in a box car, or open, as in a cattle car. When ties, boards, or timber are carried in a box car, sufficient sides are present. So, too, if they are carried in a gondola car, if not loaded too high; but, when carried on a flat car, sides must be provided. Recause of the temporary and changing uses of flat cars, they cannot have permanent sides; but these must be provided on each trip, adapted to the purposes of the trip. If, before the trip, the flat car was sent to the shop and outfitted with the kind of side standards specified for the trip, it would seem clear that they were a matter of equipment and not of loading. We think that they do not lose this character because they are provided, not at the shops, but at the point of loading, and that employes having to do with such a car in transit, are, entitled to assume that, before starting on its journey, the company used ordinary care to provide it with such side standards as were necessary to retain its load in position during the normal incidents of thé expected trip. This has been held, in carefully reasoned opinions, in Pa. R. R. Co. v. La Rue, 81 Fed. 148, 27 C. C. A. 363 (C. C. A. 3), and Port Blakeley Mill Co. v. Garrett, 97 Fed. 537, 38 C. C. A. 342 (C. C. A. 9). See, also, comments on the La Rue Case, in B. & O. R. R. v. Brown, 146 Fed. 24, 29, 30, 76 C. C. A. 482. We think the trial court acted correctly in adopting the rule of these decisions. Counsel urge that this was rough construction work, and not the operation of a finished railroad. True; but Couch was not partid-, pating in the work which created the danger, as was the workman in Morgan Co. w Frank, 158 Fed. 964, 86 C. C. A. 168 (C. C. A. 6); nor was the injury due. solely to the roughness of the track. We cío not see that the temporary nature of the track had any tendency to relieve the company from the duty of providing the car with equipment reasonably safe for the use to which it was put, nor to transform a nondelegable duty into one delegable. The question of what was proper equipment, as a question of fact, would be affected by the character of the work; but the jury was properly instructed along this line. [512] We are also told that the case is governed by the rule which this ■court applied in Noble v. Crane & Co., 169 Fed. 55, 94 C. C. A. 423. That was a case where the broken scaffold was built from defective timber selected by the fellow servant of the injured plaintiff. The employer owed no duty except to furnish raw materials. The building ■of the scaffold was a part of the work in progress, just as was the loading of the car here. Holding, as we do, that the side standards were a part of the inherently necessary equipment, and not an incident •of the loading, the Noble Case is not applicable. The case is within the rule of Kreigh v. Westinghouse Co., 214 U. S. 249, 29 Sup. Ct. 619, 53 L. Ed. 984, as applied by this court in Bryson v. Gallo, 180 Fed. 70, 76, 103 C. C. A. 424. [4] The company requested an instruction that, if the ties were loaded and handled in the way usual and ordinary on such a construction track, the plaintiff must fail. This was properly refused. It overlooked the clear contingency that a method may be ordinary, and still be dangerous or reckless. The criterion is not merely the custom, but the custom of ordinarily prudent operators. Tex. & Pac. Ry. Co. v. Behymer, 189 U. S. 468, 470, 23 Sup. Ct. 622, 47 L. Ed. 905. It results^ that the judgment should be affirmed, with costs. -