Republic Elevator Co. v. Lund

ADAMS, Circuit Judge (after stating the facts as above). [1] From the foregoing brief statement of the case it appears that the only question for our consideration is whether the court erred in declining to direct a verdict for the Elevator Company. This involves the inquiry whether the verdict as rendered is supported by substantial evidence. The Elevator Company was engaged in the usual work of such companies at or near the yards of the Railway Company. Its elevator building was located on tracks of the Railway Company leading on a downgrade from its yard on the north to another part of its yard on the south. The practice was when the Railway Company desired elevation services for it to deliver cars to the Elevator Company by placing them on this inclined way near its upper or northern end subject to the control of the Elevator Company to be taken down by it to the elevator either by cable or gravity as the case might be, whenever it was ready to perform the service. If the same was for unloading, the practice was to stop the car at the proper leg of the elevator, unload the same, and afterward take it out of the way, down to the lower yard. This was done by directing an employe to mount the car, unloosen the brake, and ride it down the grade, and, on reaching the proper destination, tightening up the brake and stopping it. On the morning of the accident in question two cars chained together, one loaded and placarded “in bad order” and the other unloaded, were brought down to the elevator, and the loaded car was stopped at one of the legs of the elevator to be unloaded. After this was done, plaintiff was directed by the foreman in, charge of the Elevator Company’s work to ride the two down to the lower yards. He mounted the first car, namely, the one which had been unloaded,'loosened the brake, another employe having, according to the usual practice, simultaneously set the cars in motion with a pinch bar, and started down the grade. The plaintiff testified that, when he undertook to stop the car or to exercise control over it, his brake refused to work, and the car, notwithstanding his best efforts to stop it, dashed against another car in the lower yard, threw him off, and seriously injured’ him. The foreman of the Elevator Company testified that immediately after the accident he inspected the car and found the brake in “bad shape” as lie called it. He found the chain attached to the lower end of the brake-shaft was all taken up. and wound tightly about the shaft, thereby forcing the end of the rod extending between the chain and the brake beam against the shait itself, effectually preventing any further action of the brakes or exertion of power upon the brakes. He testified that the rod was either broken or disconnected from the brake shoes so that it could not operate upon them at all. There was also testimony of others to the contrary effect, namely, that the brake and connecting rod were found to be in perfect condition immediately after the accident. Was this testimony sufficient to take the case to the jury? We think it was. It is first suggested that plaintiff admitted that the brake was properly set when he first mounted the car and undertook its manipulation. — 748 — Lund was apparently an ignorant man, and in answering questions categorically on cross-examination admitted that the brake operated in the usual way when he first loosened it to start down the. grade; in other words, that,' when he turned the wheel and apparently released the brake, which had before then been set to stop the car at the elevator, the car started down and there did not seem to he -anything wrong with it, but in connection with this evidence he says, as soon as he tried to set it again, it would not .work. We think this proof is not at all inconsistent with the contention of the plaintiff. It may well be that the car would start when the pinch bar was ap'plied to the wheel upon the mere unwinding of the chain around the brake shaft, and yet might not be stopped on account of the defective brake appliance complained of. It is also contended that there was no evidence of negligence except the occurrence of the accident itself. If that were so, inasmuch as the principle expressed by the maxim res ipsa loquitur has. no application to cases between the employer and employé, no case would have been made against the defendant. Chicago & N. W. Ry. Co. v. O’Brien, 132 Fed. 593, 67 C. C. A. 421. But the facts already detailed do not warrant the contention. There was, in our opinion, substantial evidence that the brake rod had either been broken or disconnected from the brake shoes prior to the time of the accident, and that the Elevator Company might by the exercise of ordinary care have ascertained that fact. The evidence tends to show that the car had been inspected by the Railway Company in its own yard four days before the accident and found in good condition, but this is evidential only of its condition on the day of the accident, and must ]?e considered in connection with all the other evidence in the case in determining the ultimate fact- whether there was culpable negligence by the defendant in not ascertaining the defective condition of the brake, and directing the plaintiff to operate it as it was. [2] Again, it was contended that the plaintiff assumed the risk of being hurt while in this particular employment. The trial judge charged the jury that the Elevator Company owed the duty to plaintiff, its employe, to exercise reasonable care to furnish him a reasonably safe appliance with which to perform his service. He carefully advised the' jury concerning the effect of the inspection claimed to have been made by the Railway Company, and that it was available to the Elevator Company as tending to show the exercise of the required reasonable care by it. On the subject of plaintiff’s assumption of the risk he charged as follows: “If you believe that a reasonably prudent workman would bave discovered tbe defective condition of tbe car, considering all tbe plaintiffs experience, considering tbe whole course of business in that yard, considering tbe outward indications of a defective condition on tbe car itself, tbis car, being marked ‘bad order,’ I say, considering all these circumstances, if you say that a reasonably prudent workman employed in the performance of tbe service which tbe plaintiff was employed in performing, would have discovered that defect, then it was tbe duty of tbe plaintiff to discover it. He assumed tbe risk of any injury arising from such a defect, that could — 749 — thus he detected; and, if the defect was of such a character, that ends the case, and it would be your duty to return a verdict in favor of the defendants.” Ill this part of the charge the court imposed an unwarrantable burden on the plaintiff. The law is well settled that an employé may rest confidently in the assurance that his employer has performed his full duty in furnishing him a reasonably safe place to work in or reasonably safe appliances to work with, and that no obligation is imposed upon him to exercise any degree of diligence to affirmatively ascertain whether his employer has performed that duty. The employé assumes the ordinary risks of his employment, but does not assume those arising from the negligence of his employer, unless the defects constituting the negligence are either known to him or plainly observable by him. This is the settled doctrine of the Supreme Court and of our court. Texas & Pac. Ry. v. Archibald, 170 U. S. 665, 672, 18 Sup. Ct. 777, 42 L. Ed. 1188; Choctaw, Oklahoma, etc., R. R. Co. v. McDade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Texas & Pacific Ry. Co. v. Swearingen, 196 U. S. 51, 62, 25 Sup. Ct. 164, 49 L. Ed. 382; Kreigh v. Westinghouse, etc., Co., 214 U. S. 249, 255, 256, 29 Sup. Ct. 619, 53 L. Ed. 984; Schlemmer v. Buffalo, etc., Ry. Co., 220 U. S. 590, 596, 31 Sup. Ct. 561, 55 L. Ed. 596; Kirkpatrick v. St. Louis & S. F. R. R. Co., 87 C. C. A. 35, 159 Fed. 855, 858; United States Smelting Co. v. Parry, 92 C. C. A. 159, 166 Fed. 407; Central Coal & Coke Co. v. Williams, 97 C. C. A. 597, 173 Fed. 337; Maki v. Union Pac. Coal Co., 109 C. C. A. 221, 187 Fed. 389; Chicago, Burlington & Quincy R. Co. v. Shalstrom (C. C. A.) 195 Fed. 725, just decided. In Texas & Pacific Ry. v. Archibald, the Supreme Court said: “The employé, on the other hand, has the right to rest on the assumption that appliances furnished, are free from defects discoverable by proper inspection, and is not submitted to the danger of using appliances containing such defects because of his knowledge of the general methods adopted by the employer in carrying on Ills business, or because by ordinary care he might have known of the methods and inferred therefrom that danger of unsafe appliances might arise.” Iu that case the Supreme Court expressly disapproved of an instruction which imposed upon the employe the necessity of exercising ordinary care to ascertain whether his employer had been negligent, in furnishing him defective cars. In Choctaw, Oklahoma, etc., R. R. Co. v. McDade, the Supreme Court said: “The employe is not obliged to pass judgment upon the employer’s methods ol’ transacting his business, but. may assume that reasonable care will be used in furnishing the appliances necessary for its operation. This rule is subject to the exception that, where a delect is known to the employé or is so patent as to be readily observed by him, he cannot continue to use the defective apparatus in the face of knowledge and without objection, without assuming the hazard incident to such a situation.” In United States Smelting Co. v. Parry this court said: “But it is earnestly contended that it was conclusively shown that the plaintiff assumed the risk and was guilly of contributory negligence because — 750 — he did nothing to satisfy himself of the security of the scaffold, and because it would have taken but a moment to ascertain how the planks were supported at the east end and whether they were nailed at the other end. The contention cannot be sustained. It is the duty of a master to exercise reasonable care to provide a reasonably safe working place for his servant, and the latter is entitled to act upon the assumption, that that duty has been performed, unless the contrary be known to him, or be so patent as to be readily observed by him. He is not required to make an investigation or inspection to ascertain whether or not that duty has been performed, but only to have due regard for what he actually knows and for what is so patent as to be readily observed by him, by the reasonable use of his senses, having in view bis age, intelligence, and experience.” In Kirkpatrick v. St. Louis & S. F. R. R. Co., the court again said : “If the risks and dangers which caused his death were the usual and ordinary risks and dangers of the employment, he assumed them, provided they were known to and appreciated by him. * * * If, on the other hand, they were not the usual and ordinary risks and dangers, but arose from negligent defects in appliances or a negligent method of operating them required by the master, then he assumed all risks and dangers arising from such_ defects and such operation, if they were known to him, or if they were plainly observable by him.” In Central Coal & Coke Co. v. Williams, this court said, again referring to an instruction given by the tria.1 court: “This, in effect, told the jury that a servant entering or continuing in the employ of a master is charged with the affirmative duty of exercising reasonable care to find out whether the place provided for him to work in is safe. . We have repeatedly held that no such obligation is imposed upon the servant. He has a right to assume that the master has performed his whole duty and that the place is reasonably safe. It is only when it is known by the servant not to be safe, or when it is patent to or plainly observable by him that it is not safe, that the servant assumes the risk of danger.” In Maki v. Union Pac. Coal Co., this court also said: “While it is true that the servant does not assume the risk of his master's negligence, the effect of which is neither known to him nor readily observable, nor to be apprehended, yet he does, by continuing in the employment .without complaint, assume the risk of the effect of such negligence which is known to him, or is obvious or plainly observable, and the danger of which is appreciated by him, or is clearly apparent, just as completély as he assumes the ordinary risks of his occupation.” There is nothing in the recent case of Chicago, Burlington & Quincy R, Co. v. Shalstrom, supra, at all inconsistent with the uniform rule laid down in the prior mentioned cases. Adopting the language of Mr. Justice Van Devanter in the Parry Case, we there held merely that a given defect must be known to an ' employé or so patent as to be readily observed by him, by the reasonable use of his senses, having in view his intelligence, age, and experience. The- inquiry with reference to an employé’s intelligence, age, and .■experiénce must hot be directed to what he ought in the exercise of reasonable care to have known or seen but to what was in fact patent to or plainly , observable by him, the particular employé in question, in ■view of his-'own information, intelligence and1 experience. This is 'clearly indicated in the Parry Case. — 751 — Notwithstanding the disadvantage to the plaintiff to which the trial judge’s erroneous charge subjected him, the jury found in effect that he did not assume the risk of injury by reason of the defective brake. This finding we think was supported by abundant evidence. The plaintiff testified that he did not see the “bad order” placard on the car relied upon by defendant as imparting knowledge to him; and, even if he did, it is apparent that the placard might have indicated to his mind many other things besides a defective brake, like for instance, a leaky roof, disordered coupling, broken door, etc., any one of which would have necessitated a transfer of the grain to another car. Certainly there was no evidence conclusive or otherwise that plaintiff knew of the defective brake, or that it was plainly observable by him. [3] The contention that the Elevator Company owed no duty to its employe, Fund, either to furnish him safe appliances to work with or to observe any degree of care for his safety, is without merit. It is argued that the Elevator Company was not a transportation company, did not own any cars: but merely received them from the Railway Company for elevation purposes and returned them to it as soon as its service was ended. This may be true, but it had the cars under its control and subject to its orders for an indefinite time, in this case four days, and its business was to operate them in the performance of the service undertaken by them, for a consideration paid therefor. Whether it was strictly speaking a transportation company or business company, it was actually engaged, as an important incident to its main business, in the control, handling and movement of cars over an inclined and dangerous track. This necessitated the employment of servants, and in our opinion carried with it the obligation of reasonable care whether of inspection or otherwise for their safety. Union Stockyards Co. v. Goodwin, 57 Neb. 138, 141, 77 N. W. 357, and cases cited: Railroad Co. v. Penfold, 57 Kan. 148, 45 Pac. 574; Baltimore & Potomac R. v. Mackey, 157 U. S. 72, 15 Sup. Ct. 491, 39 L. Ed. 624; Texas & Pacific Railway v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777, 42 L. Ed. 1188; Union Stockyards Co. v. Chicago, etc., R. R. Co., 196 U. S. 217, 25 Sup. Ct. 226, 49 L. Ed. 453, 2 Ann. Cas. 525; Felton v. Bullard, 37 C. C. A. 1, 94 Fed. 781; D., T. & Ft. W. R. R. Co. v. Smock, 23 Colo. 456, 48 Pac. 681; New Orleans & N. E. R. Co. v. Clements, 40 C. C. A. 465, 100 Fed. 415. It is also contended that the verdict of the jury presents an inconsistency which required the granting of a new trial, and that the overruling of a motion therefor constituted an abuse of judicial discretion. It is claimed that the finding against the Elevator Company is inconsistent with the finding for the Railway Company. .Tn view of the pleadings and the issues joined in the case, this cannot be true. The negligence charged against the Railway Company was different from that charged against the Elevator Company. The one was failure to properly inspect the cars. The other was a failure to use reasonable care to provide a reasonably safe appliance for employes to work with. Even if the latter involved the necessity of inspection the fact that the Elevator Company had the cars in its exclusive posses — 752 — sion for at least four days when there was at least a- possibility of their getting out of order might have required another and different inspection from that which had been made by the Railway Company. In no view of the case presented by learned counsel for the defendant do we find any reversible error. The judgment must therefore be affirmed.