215 F. 465 | 6th Cir. | 1914
McCalman brought an action against the two railroad companies to recover damages for personal injuries suffered by him while in their employ and through their alleged joint negligence. A motion to direct a verdict in favor of the defendants was granted at the close of plaintiff’s evidence, and the plaintiff brings error. The negligence alleged occurred under these circumstances: September 27, 1911, these two railroad companies filed a bill in the court below against the Brotherhood of Railway. Clerks, Bocal Bodge No. 40, its officers in their individual capacities, and a large number of other persons who, it was averred, while in the employ of complainants, had left their posts of duty and entered upon a strike which greatly interfered with, if it did not stop, complainants’ business at Memphis, and especially in its freight yards in and near that city. A restraining order was prayed for and granted, enjoining defendants from entering upon the complainants’ premises and from committing various other acts. The strike was still in progress in and about some portions of the railroad property on the night of December 7, 1911, when McCalman was injured. A force of deputy marshals was maintained and used in carrying out the order of injunction, wherever .disturbance arose in or around the railroad premises. Besides the deputy marshals, the railroad companies themselves employed and maintained a force of guards, among whom was McCalman, in what are known as the Nonconnah railroad yards, which are some four miles south of Memphis," and it was at an entrance to these yards, known as the Horn Bake road crossing, that McCalman received his injuries.
The negligent acts and omissions charged and relied on are that the railroad defendants brought into collision at the Horn Bake road crossing a number of deputy marshals and railway guards, including McCalman, without giving either body of men notice of the.approach or presence of the other, under conditions and at a time when each set-of men would naturally regard the other as hostile to the interests they were alike intending and under duty to protect. The declaration Was met by pleas of not guilty and contributory negligence.
The deputy marshals were stationed in Memphis and the railroad guards in and about the Nonconnah yards. The Horn Bake road crossing was at the intersection of that road and the defendants’ lead track near an entrance at the east end of the Nonconnah yards. Bocomotives or switch engines, whether drawing cars or not, moving between Memphis' and these yards, were required to pass this crossing, and also to stop or not according as the switch there maintained was closed or open; and this switch was quite as likely to be closed against the approaching engines as not. During the earlier part of the night in question a considerable amount of gunfiring was going on at the Nonconnah yards. Mr. Knight, who was in charge of the railroad guards, had himself fired some shots to frighten away a number of men he supposed were strikers, though he subsequently thought they were tramps. At a later hour of that evening, Knight and McCalman went to the yardmaster’s office, which was within Nonconnah and 500 yards distant from the Horn Bake road crossing; and while there, Knight
Now, while the evidence tends to show, as before pointed out, that Leslie had telephoned to Memphis that there was trouble at the Nonconnah yards, yet the evidence fails in express terms to slimy that the deputy marshals had been informed that a force of railroad
It must be conceded that plaintiff was engaged in a hazardous employment during the conditions usually attending such a strike as the one then prevailing at the Nonconnah yards; and yet it is now plain enough that a new and distinct peril was added to that employment, though whether this was due to any breach of duty on the part of defendants is the problem. No question is raised as to the authority of the corporate agencies, whose acts resulted in bringing these two sets of men to the place of injury. After the yardmaster had furnished the engine to carry the official (in charge of the guards) and two of the guards to the crossing, as stated, and, with the knowledge that guards were usually kept there, he knowingly caused the deputy marshals to come to the same place; true, the request was that they report at his office in the yards, but he knew that they would have to pass over the crossing and very probably stop there. Although the yardmaster accompanied his call for assistance from Memphis by a statement that “there was trouble in Nonconnah,” he did not describe the nature of the trouble or limit it to any particular place either within or about the yards; and it must constantly be remem-r bered that strike conditions then existed at these yards. Three engines had been torn up, and for quite a while “a state somewhat of riot and insurrection” had prevailed there.
“The nature or character of the agency or means through which the danger of injury to thé employé is to be apprehended can make no difference in the rule, for the employé is entitled in all cases to such information upon the subject as the employer may possess, and this with a view to enable him to determine for himself if at the proffered compensation he be willing to. assume the risk and incur the hazard of the business. * * * ”
That decision, among others, was followed by the Court of Appeals of Colorado in Holshouser v. Denver Gas & Electric Co., 18 Colo. App. 431, 435, 72 Pac. 289, 291. There the company had been in trouble with strikers prior to plaintiff’s employment, but it failed to notify him either of the strike or of certain threats of violence which the strikers had made concerning other persons who might take their positions; and the court rejected a distinction urged between that case and Baxter v. Roberts to the effect that in the latter case the employer was invading premises of another, while in the Holshouser Case the employer was conducting business upon its own premises, holding that:
“Tbe degree of danger to be apprehended from exasperated men Is not safely measurable by tbe cause of tbe exasperation.”
“A distinct ground upon which it is claimed that the railroad company would be liable is that it owed to its servants the duty of giving to the guards such information and instruction as would protect the other servants against danger in going to the station, and also of giving to such oiher servants warning of the presence of such danger. This is a theory that should have been submitted to the jury, but the facts were not such as authorized the court to declare a liability as matter of law. Whether or not such instructions and warning were called for was a question for the jury and depended upon the further questions whether or not’ the presence of other employes and danger to them at the depot ought reasonably to have been foreseen by the company, and whether or not the 'omission of such precautions constituted negligence of which the shooting of Lipscomb was the proximate result.”
We conclude, upon the whole, that the instant case should have been submitted to the j’ury under appropriate instructions, and, consequently, that it was error to grant the motion to direct. Any presumption that the defendants notified the deputy marshals of the presence of the guards at the road crossing was overcome by the clear tendency of the evidence. The telephonic message sent and received for the marshals fails to show any allusion to the railroad guards. The language of the deputy who opened the firing at the crossing was totally inconsistent with the idea that the marshals thought the men found there were railroad guards; and, moreover, it cannot be assumed that deputy marshals would have opened a murderous fire upon men they understood were there to aid them in suppressing trouble at the yards.
The question of variance need not be passed upon. If the objection had been urged below, no doubt the court would have allowed any amendment necessary to a correspondence between the allegations and proofs; and, besides, it does not appear that defendants were misled in this respect. Standard Oil Co. v. Brown, 218 U. S. 78, 84, 30 Sup. Ct. 669, 54 L. Ed. 939.
. The judgment is reversed, with costs,' and the cause remanded.
Besides, the following statement appears in the brief of defendants’ counsel: “It is conceded that there had been trouble in the Nonconnah yards; trains had been cut into, men had been intimidated in their work by shooting through the yards, and the night before, the office had been shot up by trespassers.”
It is bnt fair to the district judge to note that he recognized this rule, citing Williams v. Choctaw, O. & G. R. Co., 149 Fed. 104, 105, 79 C. C. A. 140 (C. C. A. 6th Cir.).