231 N.W. 189 | Minn. | 1930
The accident happened in what is known as the heavy repair yard of defendant in the city of Milwaukee, Wisconsin. This is the yard to which cars needing extensive repairs are taken and is used only for making repairs. It is not directly connected with any main line. Cars on a main line can reach it only by being first taken to another yard and then transferred from that yard to this. Cars received at this yard are first placed on a track designated as track 26 where they are inspected and the repairs to be made are noted. They are then transferred to a track termed a stripping track where defective parts are removed. They are then transferred to another track where a particular part of the repair work is done by the set of repairmen at that track. They are then transferred to another track where another particular part of the repair work is done by the set of repairmen at that track; and so on until the repairs are completed. The cars are transferred from one track to another by a switching crew consisting of an engineer, fireman, conductor or foreman, and two brakemen or switchmen. Plaintiff was the rear brakeman or fieldman of this crew. The repairmen worked in the yard in the daytime, and for that reason the switching was done at night.
The purpose of the movement in which the accident happened was to take five box-cars from track 14 and place the rear car and two others on track 17. The cars were standing a few feet apart. The engine was backed from the lead track onto track 14 and coupled to the first car, and couplings were then made with the other cars. Plaintiff attended to the making of these couplings. When they were completed he was standing on the right-hand side of the rear car. He signaled the engineer to go ahead. As the cars began to move he put his left foot in the stirrup near the rear end of the rear *521 car and grasping the grabiron with his left hand attempted to pull himself up to the side of the car intending to ride to the switch. The grabiron came off, and he fell backward to the ground, twisting and injuring his right knee.
On the preceding night this crew had moved this car from the stripping track to track 14. On the stripping track the roof and floor of the car had been removed and also the front half of the side wall on the side toward plaintiff at the time of the accident. The rear part of this side wall still remained, and the stirrup was still in place. The grabirons are fastened to the side of a car by bolts which pass through the wall of the car and through the ends of the grabiron. The heads of the bolts are on the inside of the car and the nuts on the outside of the grabiron. As the grabiron in question was to be removed, the nuts had been burned off with an acetylene torch, and it simply rested on the ends of the bolts with nothing to hold it in position. When grabirons were to be removed or the bolts holding them in place were to be taken out the nuts were burned off in this manner, and usually the grabirons either fell off or were taken off at the same time. Occasionally a grabiron was left resting on the ends of the bolts as in the present case. Plaintiff knew that the repairmen burned off the nuts in this manner but says that he had never seen a grabiron left in place after the nuts had been burned off.
Plaintiff relies upon Texas P. Ry. Co. v. Rigsby,
"The supplementary act of April 14, 1910, c. 160, § 4 [
We understand these cases to hold that, although a car with defective appliances is being moved for the purpose of taking it out of service and placing it at the point where it is to be repaired, it is within the operation of the safety appliance act during such movement. But we have been cited to no case and know of none which goes to the extent of holding that a car with defective appliances which has been taken out of service and has been placed on a repair track to be repaired in a yard used exclusively for the purpose of making repairs, and which is actually in process of being repaired, is still within the operation of the safety appliance act.
In B. O. R. Co. v. Hooven (C.C.A.) 297 F. 919, a workman was injured because of an unsafe running board and grabiron on an engine which at the time had been temporarily withdrawn from service and was undergoing minor repairs in a roundhouse. The court pointed out the distinction between the statutory test of liability under the employers liability act and the statutory test under the safety appliance act and said [297 F. 922]: *523
"In actions under the safety appliance act the statutory criterion is whether the car is 'in use' 'on its line' within the true purpose and scope of the act."
After observing that the safety appliance act forbids the "use" or "hauling on its line" of cars with defective equipment and requires a high degree of diligence in discovering and repairing defects, the court said [297 F. 923]:
"Can it be said that it is the intention of the safety appliance act to penalize such diligence by extending the absolute liability of the carrier through the period of replacement and repair, and reaching even a case where the insecure condition of the appliance which failed was the natural and temporary result of the reconditioning process? We think such contention untenable, unless supported by specific direction of the statute."
After referring to the statute and to the fact that under it liability attached during the time that the car was being hauled from the point where the defect was discovered to the point where it was to be repaired, the court said [297 F. 924]:
"In a number of cases, where the carrier has been held liable for injuries caused proximately by the defective appliances of a car withdrawn from service, the liability has been sustained on the theory that the injury occurred during the time when the defective car was being hauled to the nearest available point for repairs, or in connection with such moving or hauling."
The court cited the Otos case and the Rigsby case and, after making some observations as to when the movement to the place of repair should be deemed to have reached the point where the statute no longer applied, said [297 F. 924]:
"While there may be some indication (Texas Railway v. Rigsby, supra) that intermediate shiftings at the repair point yard are part of the unitary journey of the car from the point where the defect is discovered to the place of actual repair, there are no cases from which any holding may be inferred to the effect that a car at rest at the repair point and not in relation to movement of other cars, is a *524 part of such unitary movement as is covered by the exception to the proviso in section 4 of the 1910 amendment."
In Sherry v. B. O. R. Co. (C.C.A.)
"It is to be noted that the inhibited act on the part of the railroad company in each is 'the hauling or permitting to be hauled or used' on its line any car with the required equipment in defective condition. This constitutes the 'violation of the act' we have above referred to in statement of the general principles deduced from precedent. It has accordingly been held by this court that the act has no application to equipment withdrawn from service and undergoing minor repairs preparatory to early return to service. B. O. R. Co. v. Hooven (C.C.A.) 297 F. 919."
The court referred to the decision in the Rigsby case and said [
"This decision must be interpreted as based upon the theory that the taking of 'bad order' cars to the shops for repair is a 'part of the unitary journey of the car from the point of first discovery to the precise point of actual repair,' and therefore within the provision for continuance of civil liability under 45 U.S.C. § 13 (45 USCA, § 13). In none of the cases cited was liability held to attach after withdrawal from service had been completed and during the course of repair."
Although not directly in point, see also Industrial Acc. Comm. v. Davis,
We reach the conclusion that where a bad order car has been withdrawn from service and taken to and placed in a repair yard where it is being repaired, subsequent movements of the car made *525 in the course of the work and for the purpose of facilitating it are not within the operation of the safety appliance act.
The question presented by defendant's appeal is whether plaintiff is barred from recovering on the ground that he assumed the risk.
Plaintiff pleaded the Wisconsin statute relating to the liability of railroad companies for injuries sustained by their employes. Defendant insists that that statute does not apply to the present case for the reason, among others, that the statute expressly provides that it "shall not apply to employes working in shops or offices" [Wis. St. 1927, §
In Kelley v. C. St. P. M. O. Ry. Co.
"attempted to mount it by stepping upon the brake-beam, and seizing the brake-staff so as to raise himself up. The brake-staff gave way; he fell, and the car ran over and killed him. The evidence tends to show that the brake-staff had been nearly, if not quite, broken off before he took hold of it."
After a further recital of the facts the court said [
"The aspect of the case is, then, this: The plaintiff's intestate is notified generally that the car is in bad order, so that it has been necessary to withdraw it from ordinary service and lay it up for repairs. When he comes to handle it, he does so knowing that, for some reasons not disclosed to him, it is not suitable for use in the ordinary way. Not knowing what, in particular, those reasons are, *526
if he handles the car at all, he handles it as a car which is unsuitable for use, and at his own risk, not only for its defects, — at least, for such as are apparent to or would fairly be suggested by ordinarily diligent and careful observation, like those of the brake on this car, — but also at the risk of the negligence of his fellow-servants in handling the same. We discover nothing in the testimony to take the case at bar out of the full application of this proposition. The plaintiff's intestate must be taken to have assumed the risk of handling this car as one in bad order, which it therefore might be dangerous to handle in the ordinary way, and as to which, in the absence of any definite information as to the respect in which it was defective, the burden of ascertaining the defect and source of danger was cast upon and assumed by him. As he took this risk and burden upon himself, he cannot hold the defendant responsible for it. This is the theory upon which Fraker v. St. Paul, M. M. Ry. Co.
The court cites Watson v. H. T. C. Ry. Co.
We reach the conclusion somewhat reluctantly that plaintiff had assumed the risk and therefore is not entitled to recover. The result is that on plaintiff's appeal the order denying a new trial must be and is affirmed; and on defendant's appeal the judgment must be and is reversed and judgment directed for defendant.
So ordered. *528