60 F. 555 | 5th Cir. | 1894
Tbe facts disclosed by tbe testimony are that the plaintiff was a car repairer in the car department of tbe defendant; that one White was tbe foreman of tbe car department, in which was included tbe wrecking department of tbe company. White bad authority to employ and discharge persons working in that department, and did employ- tbe plaintiff. There was a wreck on defendant’s road. White sent one Schmalz-reid and the plaintiff and others to tbe scene of tbe accident with a wrecking car, on which were a derrick and appliances with which to remove the wreck. Schmalzreid had charge of the wreck ing car and machinery while it was operated in removing the wreck, and while' in charge of the work was called the “wreck master,” and had experience as such. The wrecking car was placed on a bridge, at the place of the wreck, which the evidence tended to show was defective and insecure. It had been damaged at the time of the recent wreck, and had been but temporarily repaired. The evidence also tended to show that, while the wrecking car was provided with sufficient and suitable ropes to secure and keep the derrick on the car in position, they were not properly fastened or used at the time of the injury complained of. The plaintiff was working on the car, and participated in handling the ropes, and had been so working for. a day and a half before the injury occurred. The car and derrick toppled over, and he was severely injured. The evidence further tended to show that the injury resulted from Schmalzreid’s negligence in placing the car on the bridge to do the work, when it was unnecessary to do so, and in not properly fastening the ropes to secure and keep the derrick in position. The general charge of the court, to which the plaintiff excepted, and now assigns as error, was as follows:
“So far as the faulty construction of the bridge is objected to by plaintiff, it was obviously a new and temporary structure, the defects of which, so far as they may have contributed to the injury of plaintiff, were patent, and open to the eyes of the plaintiff. Under the evidence in this case, you are instructed that plaintiff cannot recover under his allegations of negligence on the part of Schmalzreid, the wrecking master. You will therefore find for the defendant.”
The plaintiff also requested several special charges, which were refused by the court, and to which plaintiff excepted.
We think the facts of this case bring it directly under the ruling