191 F. 682 | 6th Cir. | 1911
(after stating the facts as above).
Starting, then, with the established negligence of the defendant, we take up the questions presented to the trial judge by defendant’s motion for a directed verdict at the close of all the testimony, and, on the motion for a new trial, whether under the facts the decedent must be held to have assumed the risk of his employment, and (or) to have been guilty of contributory negligence as a matter of law.
In overruling the motion he said:
“It seems to me that Is a question of fact whether by virtue of the extent of his employment and his years and experience he did know and appreciate tlie dangers of it. If he did, he cannot recover, but it strikes me under all the testimony in the case there is a question of fact to present; as to whether lie did know and appreciate the dangers of the position, so I think the ease must go to the jury.”
He was not then concerned with the weight of the evidence on these points. When, however, he came to consider the motion for a new trial on its various grounds, including the alleged error in his overruling defendant’s motion for a directed verdict, his duties required him to weigh the evidence for the purpose of ascertaining if there was any evidence which would warrant a verdict, and his conclusion, involving a matter of discretion, is not ordinarily reviewable on error. Big Brushy Coal & Coke Co. v. Williams, supra.
These rules would ordinarily preclude any consideration of the evidence on review. But it is defendant’s earnest contention that the undisputed evidence shows an assumption by the decedent of tlie risks of his employment and shows his contributory negligence, and that there is no evidence tending to show the contrary. If defendant is right, then there was no evidence to be weighed and the questions involve considerations purely of law.
The subjects of assumption of risk and contributory negligence are much confused in many of the decisions. They are entirely distinct. One has to do with contract, and the other rests in tort. “Assumption of risk,” says Judge Taft, “is a term of the contract of employment, express or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant’s duty shall be at the servant’s risk.” Narramore v. Cleveland, C., C. & St. L. Ry. Co., 96 Fed. 298, 301, 37 C. C. A. 499, 501 (48 L. R. A. 68).
“Assumption of risk is the voluntary contract of an ordinarily prudent servant to take the chances of the known or obvious dangers of his employment, and to relieve his master of liability therefor. Contributory negligence is the casual action or omission of the servant without ordinary care of the consequences.” St. Louis Cordage Co. v. Miller, 126 Fed. 495, 502, 61 C. C. A. 477, 484 (63 C. C. A. 551).
Looking for guidance- to the latest definitions of these subjects, as given by the Supreme Court, we find from the pen of Mr. Justice Day in Schlemmer v. Buffalo, etc., Ry. Co., 220 U. S. 590, 596, 31 Sup. Ct. 561, 563 (55 L. Ed. 596), the following:
“In the absence of * * * such obvious dangers that no ordinarily prudent person would incur them, an employe is held to assume the risk of the , ordinary dangers of the occupation into which he is about to enter, and also those risks and dangers which are known.or are so plainly observable that the employs may be presumed to know of them, and, if he continues in the master’s employ without objection, he takes upon himself the risk of injury from, such defects. Choctaw, etc., R. Co. v. McDade, 191 U. S. 64, 67, 68 [24 Sup. Ct. 24, 48 L. Ed. 96] j and former eases in this court therein cited. Contributory negligence, on the other hand, is the omission of the employs to use those precautions for his own safety which ordinary prudence requires.”
Treating the subject of assumption of risk separately, inquiry is directed to the ordinary dangers of the occupation the boy Ponn entered. The accident happened at 2:30 o’clock in the morning. It does not appear at what hour the large engine was turned each night. It is a fair presumption that it .was ,at the same, or about the same hour, each night. Ordinarily no danger attended the operation of turning engines. It was only when the long heavy engine came along, once each night, that any danger was present. Ponn entered an employment in which he apparently was exposed to no danger at all. When danger arose in the course of his employment, he as a matter of contract assumed the risk if he knew it, or if 'it was so plainly observable that he would be presumed to know of it. Every one might agree that Ponn knew of the defect in the turntable which required the turning of the long heavy engines- the “wrong” way, but it is not so clear that he knew of the risks of the operation, or that they were plainly observable to him. “There is a distinction,” says Judge Lurton, “between knowledge of .defects * * * ’and knowledge of the risks resulting from such defects.” National Steel Co. v. Hore, 155 Fed. 62, 65, 83 C. C. A. 578, 581.
There was no direct evidence on the subject of Ponn’s actual knowledge. Hence the given physical facts, the age of the boy, the extent of his experience, the time of night, the infrequency of.operation, are all circumstances bearing on the ultimate fact of the extent of his knowledge.
ín the charge to the jury the trial judge said:
“The deceased as an employe of the railroad company assumed the risks of his employment which were known and appreciated by him.”
He expressed himself the same way in giving his reasons for overruling the motion for a directed verdict.
The word “appreciated” in this connection does not mean more than actual knowledge. It does not mean less than that. It is frequently used in the decisions as the trial judge used it. In Crawford v. American Steel, etc., Co., 123 Fed. 275, 280, 59 C. C. A. 293, 298, Judge Wallace says:
•’He [the employe] is' presumed to have known and appreciated all such risks as were open and obvious to ordinary apprehension.”
It is said in Mundle v. Hill Mfg. Co., 86 Me. 400, 405, 30 Atl. 16, 18:
“One does not voluntarily assume a risk, within the meaning of the rule that debars a recovery, when he merely knows there is some danger, without appreciating the danger. * * * If he comprehends the nature and the degree of the danger, and voluntarily takes his chance, he must abide the consequences. * * * ”
The question was properly submitted to the jury.
There is little difficulty in disposing of the defendant’s complaint of the way the trial court dealt with the subject of contributory negligence. Mr. Justice Day’s definition is but a restatement of the rule of practically universal adoption in the courts of the United States and in the state courts.
The fact of negligence is not usually to be established by direct proof, but from inferences arising from'the facts. McGhee v. Campbell, 101 Fed. 937, 940, 42 C. C. A. 94. Given the facts surrounding Potin, his age, his experience, or want of it, the time the accident happened, the condition of light or darkness, his knowledge of the physical facts and their relation to each other, the infrequency of the operation, the extent of his appreciation of danger, the fact that men older and of more experience than he were associated with him in the operation, the question arises whether reasonable men, when considering Ponn’s conduct, might differ in the inferences to be drawn from the facts proved.
“It is well settled,” says Mr. Justice Brewer, “that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury; and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” Richmond, etc., R. Co. v. Powers, 149 U. S. 43, 45, 13 Sup. Ct. 748, 749 (37 L. Ed. 642).
From these considerations it is clear the trial judge had no choice but to overrule the motion for a directed verdict, both as to assumption of risk and contributory negligence. We áre not required to decide whether the verdict was against the weight of the evidence on these subjects or not, for, having found that there was evidence properly submitted to the jury and that the trial judge, after weighing the evidence, ahd in considering the-motion for a new .trial, in the exercise of his discretion, overruled it, this court is bound by his decision.
In defendant’s behalf numerous cases are cited to the point that when an employé has the choice of two ways of doing his work, one. safe and the other dangerous, it is his duty to select the safe way. This could only apply to this case on the theory that as a matter of law the court must say it was Ponn’s duty to select in his work the lever opposite the pilot end of the engine. It does not appear that the engine could be moved either the “right” way or the “wrong” way, with only 'two men at each lever. It does not appear that Ponn had any choice between these two ways, if the engine was to be turned at all.
Aside from this, however, and appreciating the fact that he could not have been injured if he had worked on the opposite lever, the question was still for the jury whether or not under all the facts he conducted himself with due regard for his own safety.
Defendant assigns as error the admission of evidence of a similar accident eight or nine years before. This evidence was admitted as tending to show the existence of a condition known to the defendant and the danger known to it. Defendant does not claim its inadmissi
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“A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the'more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence.”
But these reasons were not absent from the mind of the learned judge who tried the case below. It is true he permitted the evidence to go to the jury, but, when he came to charge the jury, he said:
“Evidence has been introduced to the effect that this turntable has been supplanted by a longer table since this accident.- That evidence should not be considered by you as an admission by the defendant that it was negligent in the use of this table as applied to this case. It is shown by the undisputed practice that a table fully as long as the engine is easier to operate and more desirable; but the evidence was properly admitted for other purposes, and, as I say, should not be taken as an admission of negligence in the operation of the table at the time the decedent' was operating it.”
From such of the proceedings below as the record on error now discloses, it does not appear for what other purpose the evidence was. offered than in the attempt thereby to show defendant’s negligence by such admission as might be implied from the substitution of the new turntable. No injury, however, has resulted to the defendant by the introduction of the testimony for the reason that the jury were expressly instructed not to consider it in its relation to the subject of negligence. Hence the apparent error was not in any way prejudicial to the defendant. Choctaw, etc., R. R. Co. v. McDade, 191 U. S. 64, 69, 24 Sup. Ct. 24, 48 L. Ed. 96.
No error being found, the judgment of the Circuit Court will be affirmed, with costs.