Siegesmund v. Chicago, M. & St. P. Ry. Co.
229 F. 956
7th Cir.
1916
Check Treatment
ALSCHULER, Circuit Judge

(after stating the facts as above).

[1] That the evidence tended to prove negligence on the part of the company resulting in the accident does not seem to be seriously controverted. The evidence of the special danger in this particular work, of the necessity, and the practice in this shop, of imposing some barrier for the chips to strike against, of the control the machinist may exercise as to the direction in which the chips will fly, and of tire act of beginning to chip while Siegesmund was in the particular situation of picking up the bar] make it plain that if the determination of this cause had depended wholly on whether or not negligence on the part of the company were shown, that question should and would have been submitted to the jury, and with it, of course, any question of contributory negligence of the plaintiff, which, if shown, would not under the federal Employers’ Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [Comp. St. 1913, §§ 8657-8665]) — the applicability whereof is not controverted — bar recovery, but would be considered in reduction of damages.

[2] The controlling question here is whether, under the evidence, the District Court was warranted in finding, as a matter of law, that the injury to the plaintiff was the result of the dangers and hazards usual to the plaintiff’s employment, the risk whereof he assumed. In respect to this employment, the evidence tends to show that where chipping was being done in this shop, particularly on .such boxes, the flying of chips could be and usually was avoided by the use of means to intercept 'them. From this it might be concluded that the flying of metal chips was not a danger which was usual, or of necessity incidental to the work in and about the shop, even if it appeared that sometimes such protective and preventive means were not employed, and that at such times chips might fly about.

In order to conclude that an employe in this shop, who was injured by flying chips, assumed the risk of such injury, it must appear from the evidence, not only that in his then particular employment there was such danger from flying chips, but-also that the employé knew of such danger, or by the exercise of reasonable care ought to have *959known or anticipated that there would be flying chips thereabout which might injure him. The helper was under the machinist’s orders, working wherever and at such work as he was directed. At the machinist’s orders he inserted his bar between the spokes of the wheel and held the box in place, while the machinist, just on the other side of the wheel, was chipping the box, driving the chips toward the direction where the helper was standing. It does not appear there was any other chipping in the shop at that time; at least, not in the vicinity of the helper. The helper testified that there were no machines near by, and that the nearest workman was upwards of 50 feet away, engaged in putting brakes on a locomotive.

Such is the instinct of self-preservation, and particularly that of guarding the eyes from injury, that it may well be presumed that, knowing chips were then being driven towards him, he averted his head or closed his eyes to protect the eyes from injury. Indeed, it might well be said that, failing to do so, and voluntarily remaining in a situation in which he knew the chips were being driven towards him, and appreciating the danger therefrom, while in such situation he assumed the risk of injury which might then have come from the flying chips. But, when the machinist ceased chipping and ordered him to drop his bar and help turn the box about the axle, at once a dif - ferent situation and relation arose. Siegesmund testified he did not know why the box was to be turned, that he did not know any further chipping was to be done upon it, and that he supposed that, if chipping was to be done, he would first be required to insert his bar and hold the box just as he had done shortly before.

In the brief for defendant in error it is stated:

“Appellant knew exactly what the machinist had to do to finish this particular work, and knew, furthermore, that the machinist was through with him after the box had been turned.”

If by this it is meant that plaintiff in error knew that chipping was to be done on the other side of the box, the evidence does not support the assertion; neither can it be said that he knew that the machinist was through with him. He may, as he testified, have assumed that the work of chipping was completed; and the fact that his machinist, under whose direction he was, had as yet given him no further orders, might have warranted him in concluding he was to remain there until the machinist told him to go elsewhere, or to do something else.

In the same brief it. is further said: ,

“There is no evidence that plaintiff had been ordered to pick up the bar, * * * ” nor “that there was any necessity to pick up the bar at that particular moment.”

Presumably, unless directed to the contrary, he was expected to pick up the bar which he had thus laid down, and to pick it up when he did seems a rational and natural act, and the evidence suggests no plausible reason why he should have delayed it. Might it not, with greater show of reason, be inquired: Why did not the machinist wait with resuming his chipping until he had some assurance that the help'dr was not in special danger therefrom?

If, as contended in the brief for the company, the helper’s work on *960this box was done, he was nevertheless subject to the further direction of the machinist, who might well have supposed the helper would •pick up the bar and remain where he was until ordered elsewhere by the machinist. If the helper had any reason to- believe that chipping would then be resumed in such dangerous proximity to himself, he would have had opportunity at least to- have taken such precaution as to avert his head, and thus in large measure protect his eyes.

From the evidence it might well be concluded that danger to employes from flying chips was not necessarily and usually incident to employment in and about that shop-, and that plaintiff in error in- the work in which he was then engaged did not know, and could not reasonably have anticipated, that chipping would at that time be done. The danger to Siegesmund from flying chips not being necessarily incident to his employment, or so obvious that the court may say as a matter of law that he assumed the risk therefrom, the question whether he knew of the danger, or ought reasonably to have anticipated it, should have been left to the jury.- Texas & Pac. Ry. Co. v. Swearingen, 196 U. S. 51, 25 Sup. Ct. 164, 49 L. Ed. 382; Oregon Short Line & U. N. Ry. Co. v. Tracy, 66 Fed. 931, 14 C. C. A. 199; Peirce v. Clavin, 82 Fed. 550, 27 C. C. A. 227; Penna. Ry. Co. v. Jones, 123 Fed. 753, C. C. A. 87; N. P. Ry. Co. v. Wendel, 156 Fed. 336, 84 C. C. A. 232; Katalla Co. v. Rones, 186 Fed. 30, 108 C. C. A. 132; Benson Lumber Co. v. McCann, 223 Fed. 1, 138 C. C. A. 415.

The judgment is reversed, and the cause remanded, with direction to the District Court to grant, a new trial.