Atlantic Ice & Coal Corp. v. Van

DONAHUE, Circuit Judge (after stating the facts as above), [T] This court has no authority to reverse this judgment upon the weight of the evidence. R. S. § 1011 (Comp. St. § 1672). Penna. Casualty Co. v. Whiteway et al., 210 Fed. 782, 127 C. C. A. 332; Brazil Block Coal Co. v. Hotel, 192 Fed. 108, 112 C. C. A. 448; Railway Co. v. Akre, 200 Fed. 955, 119 C. C. A. 250; Mfg. Co. v. Maslanka, 203 Fed. 465. 121 C. C. A. 589. No exceptions were taken to the charge of the court or to its ruling upon the admission or rejection of evidence; therefore the only question presented by this record is whether or not the court erred in overruling the motion of the defendant, at the close of all the evidence, for a directed verdict. [2] A court has no authority to direct a verdict, where a consideration of all the evidence, and the inferences reasonably and justifiably to be drawn therefrom would sustain a verdict for the opposing party. Bramley v. Dilworth (C. C. A.) 274 Fed. 267; Railway Co. v. Lacey, 185 Fed. 225, 107 C. C. A. 331; Railway Co. v. Anderson, 168 Fed. 901, 94 C. C. A. 241. [648] If the evidence is such that reasonable minds may arrive at different conclusions, then it is the duty of the trial court to submit the issues of fact to a jury. That reasonable minds may reach different conclusions upon the evidence offered in this case is fully shown by its history. Two juries have found in favor of the plaintiff, one jury found for the defendant, and still another jury failed to agree upon a verdict. One verdict in favor of the plaintiff and one verdict in favor of tire defendant were set aside by the trial court. The court, however, refused to set aside the second verdict in favor of the plaintiff and rendered-judgment thereon and in that connection said: “There was in my opinion such substantial evidence on behalf of the plaintiff as to require the defendant’s motion for a directed verdict to be overruled.” Upon the question of defendant’s negligence, the plaintiff offered substantial evidence tending to prove that defendant placed and maintained a rod reaching from the wall of the factory building to the middle of these steps and directly in front of them;' that these steps were provided for and intended as a passageway for defendant’s employés. It is true that upon these questions there is a serious conflict of evidence, but this conflict affects only the weight of the evidence. While the burden of proof rests upon the plaintiff to show negligence on the-part of the defendant, nevertheless the question of the credibility of witnesses is a question for the jury. If the jury believed the witnesses offered by the plaintiff, as it evidently did, then the plaintiff fully met this burden, and the verdict of the jury, which necessarily includes a finding by it that the defendant erected and maintained this obstruction substantially in manner and form as averred in the declaration, and that under the facts and # circumstances of this case this constituted negligence on the part of the defendant, is fully sustained by the evidence. The presumption obtains that the plaintiff was exercising due care for his own safety. Therefore the defense of contributory negligence must fail unless the jury find from a preponderance of all the evidence that the plaintiff was guilty of negligence contributing to his own injury. [3] While it was the duty of the defendant to use ordinary care in providing a reasonably safe working place and passageways for its employés, nevertheless, even though the defendant were guilty of negligence in this respect, plaintiff would have no right to close his eyes to an obvious danger, or fail to exercise reasonable care and caution for his. own safety. There is, however, no absolute rule of law requiring an employé to be constantly on the lookout for dangerous obstructions, of which he has no knowledge, at his working place or in passageways provided by his employer for his use. It is sufficient if he exercises such ordinary care as a person of ordinary prudence and caution would exercise under the same or similar circumstances. In this respect the plaintiff testified that he had no knowledge of this obstruction, that he might have seen it had he been looking downward, but that his attention was momentarily diverted from the steps by his effort to attract the attention of the driver of the truck. It there [649] fore became a question for the jury whether, under these facts and circumstances, the plaintiff was exercising due care or by his own negligence in failing to keep a constant lookout for dangerous obstructions in this passageway contributed to his injury, notwithstanding the defendant may have been guilty of negligence in placing and maintaining this.obstruction in front of a portion of these steps. [ 4 J While it is the law that an employe assumes the risks incident to his employment — that is to say, risks that inhere in the employment itself and which cannot be obviated or avoided by ordinary care on the part of the employe!- — yet this assumption of risk does not embrace risks or dangers arising from the negligence of an employer in the erection and maintenance of an obstruction of the character described in plaintiff’s petition. Therefore, unless the plaintiff had knowledge or ought to have had knowledge of this obstruction, he did not by his contract of employment or by remaining in this employment assume the risk of injury from the obstruction itself, but only the risks naturally and necessarily incident to the business in which he was engaged. The plaintiff testified that he had no knowledge whatever of this obstruction, nevertheless, if it were so obvious that a reasonably careful man, under the same circumstances and with the same opportunities, would have seen and observed it, then the plaintiff cannot be heaid to say that he did not see what he must have seen had he been exercising due care for his own safety. On the contrary, he must be held to have assumed the risk of the existing conditions in and about the place in which he seeks and accepts employment, if he had knowledge, or in the exercise of ordinary care should have had knowledge, of these conditions. Shannon v. Willard, 201 Mass. 377, 87 N. E. 610. The plaintiff had been in the employ of the defendant for a part of the summer of 1916. He had again entered into the employ of the defendant a few days prior to the date of his injury. He testified that during his last employment he had had no occasion to use these steps prior to the time of 'his injury. He also testified that he passed these steps while riding on the ice truck at least twice a day; that he was not riding on the driver’s seat, but usually on the rear end of the truck, and therefore had no opportunity to observe the steps as the truck approached them. It was therefore a question for the jury to determine from all the facts and circumstances in this case whether the defendant had knowledge, or in the exercise of ordinary care, should have had knowledge, of the obstruction placed and maintained by defendant in front of these steps. The charge of the court is not copied into this record. The presumption obtains that the court fully and fairly charged the jury upon assumption of risk by an employe, and the conditions and circumstances under which the plaintiff would be held, as a matter of law, to have assumed such risk. This presumption is strengthened by the fact that no exception was taken to the charge. There can be little or no controversy as to the propositions of law involved in this case or as to the application of that law to the facts-necessarily found by this jury, preliminary and essential to a general [650] verdict in favor of plaintiff. While upon the facts the case is a close one, nevertheless there is sufficient evidence in this record to sustain the verdict of the jury upon every issue of fact'submitted to it and vital to a recovery by the plaintiff. For the reasons above stated, the judgment of the District Court is -affirmed.