252 F. 553 | 2d Cir. | 1918
(after stating the facts as above).
“Until otherwise ordered by the Interstate Commerce Cjammission, it shall be unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grabirons or handholds in the ends and sides of each car for greater security to men in coupling and uncoupling cars.”
The first question is whether this provision was not fulfilled. At each end of the car there was a pin lever operating the automatic coupler. This pin lever came out nearly to the corner. At each side, near to these corners, was a grabiron and a sill, so situated that a man could use them while operating the pin lever. There were also grabirons on each end of the car opposite to wher'e the pin levers were. It appears to us that the language of the section was complied with. It is clear that the number of grabirons was not specified and it is only by the-act of April 14, 1910 (36 Stat. 298, c. 160) as amended by that of March 4, 1911 (Act March 4, 1911, c. 285, 36 Stat. 1397), that the number of grabirons could be prescribed by the Interstate Commerce Commission. Since that time the Interstate Commerce Commission has provided that there shall be grabirons on both ends of each side of the car, with sills under them, and ladders on each side of each end of the car. This, however, is a new provision, and not in effect on November 8, 1915.
• Section 4 of the act of 1893 was designed to promote the safety of the “men in coupling and uncoupling cars,” and the grabirons on the side were probably included to give some hold while the men operated the pin levers. We do not see, however, how a grabiron on the-side of the car away from that towards which the pin lever extended could by any construction be of assistance in coupling and uncoupling. If a man was coupling or uncoupling on the side opposite to that at which the pin lever came out, he could do nothing
As to green men the case is different. 1 have some doubt whether we should assume that they would necessarily observe such relatively exceptional equipment. While it was a most unexpected thing to happen, it seems to me doubtful whether it passes so far beyond possibilities reasonably to be anticipated as to justify its exclusion from that latitude which a jury should be allowed in fixing fault. The parties did not stand upon an equality in knowledge, and there seems to me a question whether the defendant might assume that the exceptional equipment had in less than two mouths come to the plaintiff’s attention, or that he would not he misled by the much greater proportion of modern cars. However, my colleagues believe that, as the old style was equally open to his observation, the defendant had the right to assume either that he would not act without looking, or, if he had got so far as to establish instinctive habits, he would have already learned that he could not rely upon a safe support. In any case, they think, he cannot he excused from contributory negligence, which, the case in this aspect being at common law, is a defense.
None of the authorities that are mentioned by either parly seem to us to have any place in the discussion. Of course, we do not assume that the act of 1893 was abrogated by the act of April 14, 1910, or of March 4, 1911. Illinois Central Ry. Co. v. Williams, 242 U. S.
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