195 F. 919 | 8th Cir. | 1912
The plaintiff in error, the American Car & Foundry Company, hereafter called the defendant, is engaged at St. Louis in the manufacture of cars for various railroads. September 29, 1909, a flat car was complete and ready for delivery to the Western Pacific Railroad. It was discovered that sufficient room did not exist between the upper and lower bolsters to give the car the proper side motion. ■' ■
Fabfc White, who was a foreman in the employ of the defendant, called in Mr. Joseph F. Barry and others to assist in fixing it. Mr. Barry is the defendant in error, and will be hereafter called the plaintiff. One end of the car was raised on a jackscrew, and dirt and waste was thrown into the centerplate and the car let down. It was found too much had been placed in the centerplate, and the car then had too much side motion, and it was again raised, and Mr. Barry was sent under the car to remove some of the trash. While he was attempting to do this the jackscrew telescoped—that is, the stem slipped down in the frame—and Mr. Barry’s hand was caught, and he received injuries that required the amputation of his fingers. Subsequently they failed to heal, and a second operation became necessary. Pie sued for $7,500 and the jury returned a verdict in his fa
Fabe White testified that they usually had two or three jacks, generally a screw and a couple of stepjacks. The jack in question was a step jack. Mr. St. Clair testified that an accident happened to him nearly three weeks before with such a jack; that the jack with which the accident to him happened was a lever jack, had no cap on that he knew of; that the jack slipped, and the lever flew up and hit him, causing him to bleed in the mouth.
Sam Kelly testified that he was working at the defendant’s factory; that he was working with St. Clair at the time he was hurt; that the jack used was a lever jack; that he had one side of the car jacked up and the. jack slipped when he was laying it down and the lever flew up and hit him under the jaw; that that jack had no cap on it. He was also present at the time of the accident complained of, and testified that the jack was standing when the car came down the last time; that they attempted to raise the car after the accident, but were unable to do so until they sent for a screwjack; that he had seen the jack slip before aside from the time that St. Clair used it; that in raising it it would go such a distance, then it would not work any more, hut slip' hack. Mr. Barry also testified there was no cap on the jack with which he was hurt, and that the jack was taken from track one or two, and that it was the only jack he had noticed that had the cap off. The jack was not produced on the trial, and the evidence was sufficient to identify the jack used by St. Clair with the one used at the time in question, and the evidence was admissible.
It is complained that the court failed to give the peremptory instruction asked for the defendant.
The ;ack in question was in use regularly upon the defendant’s premises. About three weeks before the accident, as the jury had a right to and, St. Clair was using the same jack in raising a car when the jack slipped down and the handle flew up and hit him. When the accident to plaintiff took place, the stem slid down into the frame, and, when it was attempted to raise the car to release the plaintiff, the same thing took place..
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“When there is as in this ease an explosion of this nitroglycerine, there is a presumption arises that it was from some inherent defect, something in the character of the nitroglycerine itself, due to surplus acid or some other cause, that made it explode, without the intervention of any other agency. Now, that being the presumption, unless that is explained by the evidence, you are warranted in coming to the conclusion that the defendant furnished the plaintiff with impure nitroglycerine, and'in that departed from his duty as an employer.”
The Court of Appeals said:
“Under the evidence in this case, there could be no claim that the cause of the accident could not be accounted for. It was accounted for if nitroglyerine, when properly manufactured, could not explode spontaneously, and this nitroglycerine did so explode. The jury were compelled to find the other necessary facts before they could infer negligence from the explosion. When that prima facie case was made, the burden of rebutting it was upon the defendant. The ease does not come within the rule that the fact of accident carries with it no presumption of negligence on the part of the employer, laid down in Railroad Co. v. Barrett, 166 U. S. 617, 17 Sup. Ct. 707, 41 L. Ed. 1136, and Patton v. Railway Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361, nor within the cases in the state courts referred to in defendant’s brief. Under the facts in this case, negligence in the manufacture of the nitroglycerine would be presumed in the absence of evidence showing care in the manufacture of it, as the explosion raises a presumption of negligence, if there is no explanation of the real cause for such explosion. Judson v. Powder Co., 107 Cal. 549, 40 Pac. 1020, 29 L. R. A. 718, 48 Am. St. Rep. 146, and the note to the same case in 29 L. R. A. 718; Schoepper v. Chemical Co., 113 Mich. 582, 71 N. W. 1081.”
In the case at bar, suppose this same jack had acted in this same way 100 times through 100 weeks, could the company continue to use it and win all cases for Occident °by always saying that the doctrine of res ipsa loquitur does not apply? It is not pretended that in the use of such a jack as already described the stem will, upon the application of pressure, slide down into the frame.
The working machinery of the jack is inclosed in an outer case, so that no one could tell in just what way it was defective. That it was defective and would not work is beyond all question and the defendant, being in possession of the jack, failed to produce it that it might be determined just what was the matter with it, but that it was radically defective is clearly and abundantly shown, and that it had been in this defective condition for about three weeks. Under the circum
“If you And from the evidence in this case that there were jacks furnished by the defendant for use by its employes which were reasonably safe and suitable for the purpose of raising a car to do the work in which plaintiff was engaged at the 1 ime of Ms injury, and if you further find from the evidence that plaintiff or his fellow servant, Brown or Fabe White, referred to in the evidence as track foreman, had access to jacks furnished by defendant, which were reasonably safe for said purpose, and that either said Fabe White or said Brown selected the jack which was being used at the time of the plaintiff’s injury, then plaintiff is not entitled to recover, and your verdict must be for defendant.”
It appears that were two step jacks furnished, and it was sought to have the jury told that if there were suitable jacks and the plaintiff’s fellow servants took the wrong one, and the accident occurred, no action would lie. This instruction assumed that an employer, charged with the duty of exercising ordinary care to furnish reasonably safe appliances, discharges that duty by furnishing for use together safe and utterly unsafe appliances, and is free from all blame if the employe selects the unsafe one, especially where the lack of safety is wholly concealed.
The defendant assigned as error the refusal to instruct that plaintiff could not recover, unless he showed the dogs or ratchets were worn and liable to slip. The allegation was that the jack was defective and weak, hut defendant contends these general charges were
The judgment is affirmed.