Commonwealth Steel Co. v. McCash

184 F. 882 | 7th Cir. | 1911

SANBORN, District Judge

(after stating the facts as above). No reasonable theory of the cause of the accident is disclosed in the testimony. No witness assumes to account for the erratic course of the heavy gate through the air for the distance of 25 feet, although it is suggested that there may have been something in the sand on which it fell which would cause it to take such an unusual and unexpected course. No on.e appears to have anticipated any danger. Such a thing had never happened before. The only conjecture which seems at all plausible is that, when the car body was let down on the steel block, it was allowed to come to rest with the inner end of the gate slightly extending over the block, so that, when the former was struck with the weight, it would naturally be whirled off away from the car body. This is mere surmise, however; there being no proof explaining just how this particular body was placed on the block, and no charge of negligence in this respect. At the close of all the testimony defendant moved for a directed verdict, which was denied, and defendant duly excepted.

The four counts of the declaration allege failure to provide a safe working place, omission to warn the deceased of the danger, failure to inclose the working place with a railing or fence, and negligently allowing the weight to drop on the side of the gate, instead of the center. The last count is not sustained by the evidence, and the third, relating to the railing, was withdrawn from the consideration of court and jury. The court submitted to the jury the question whether an ordinarily prudent person would have regarded it reasonably safe to put the deceased to work near the drop — would have anticipated the danger. As to the second count, alleging failure to warn, the court charged that if the company knew the place was dangerous, and the young man did not, and was not warned, there might be a recovery.

The motion to direct a verdict for defendant should have been granted. No one could reasonably anticipate such an unexpected and extraordinary event. No such thing had ever happened before, in the course of many years. It is not possible even now to arrive zt more than a guess as to why the thing happened. If there is no way now, with the testimony of nine witnesses before us, men who have worked at the same business for years, to tell why or how the accident occurred, how can it be said that the company, in the exercise of reasonable and ordinary care, should have anticipated any danger? It must either have known there was danger, or by reasonable diligence could have known it. Parrott v. Wells, 15 Wall. 524, 21 L. Ed. 211; Washington, etc., Co. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044, 34 L. Ed. 235; St. Louis, K. & C. R. Co. v. Conway, 156 Fed. 234, 86 C. C. A. 1; Chicago, etc., Co. v. Elliott, 55 Fed. 949, 5 C. C. A. 347, 20 L. R. A. 582. Neither of these requisites is shown by the evidence to have existed. They are not even suggested by it. On the other hand, all the evidence, and all reasonable inference from it, show plainly an utter lack of any ground, reasonable or speculative, of anticipated danger.

The judgment is reversed, with direction to grant a new trial.

Reversed.