207 F. 306 | 6th Cir. | 1913
(after stating the facts as above). The first assignment of error is based upon the denial of a motion made at the close of all the evidence, without specifying any distinct ground, to direct a verdict for the company.
However, it is urged that “there is no evidence that Rice was using the defective brake.” He was seen operating the brake of the oil car but was not seen alive thereafter. The defective brake of the box car was immediately in front of' him when he was setting the brake •of the oil car, and his lantern stood close to him on the platform. The record is silent as to his movements between the time of setting the •oil car brake and the collision.' It is hard to conceive, in view of the ■distance between the point at which he boarded the car and the location of the standing cars, in connection with'the close proximity of the brake on the box car, that there was not time for an experienced ■brakeman both to set the oil car brake and try to set the other brake. Everything that he was seen to do was in the prompt performance of acknowledged duty. Is it to be said, then, that he failed in so important a matter as at least to try to use the brake of the box car? That was the very next and the last step to be taken in the discharge •of his duty; and his own safety as well as that of both the moving •and standing cars depended upon his performance of that duty.
“The jury might well have believed that he was on the track in the performance oí his duty and in the exercise of all the care to be expected of a l>rudent man.”
See, also, Caron v. Boston & Albany Railroad, 164 Mass. 523, 525, 526, 42 N. E. 112.
This is in principle like the presumption of performance of duty, which, in the absence of evidence to the contrary, is indulged in favor of one who is injured at a railroad crossing; that is, that he stopped, looked, and listened before attempting to cross. Baltimore & Potomac R. R. v. Landrigan, 191 U. S. 461, 472, 474, 24 Sup. Ct. 137, 48 L. Ed. 262; P., C., C. & St. L. Ry. Co. v. Scherer, 205 Fed. 356, decided by this court May 6, 1913; Gates v. Beebe, 170 Mich. 107, 112, 135 N. W. 934. The principle so alluded to is applicable under other and varying circumstances, where there is an absence, as here, of direct testimony on the subject in dispute. Prince v. Lowell Electric Right Corp., 201 Mass. 276, 281, 87 N. E. 558; Brown v. Coal Co., 143 Iowa, 662, 673, 120 N. W. 732, 28 L. R. A. (N. S.) 1260; Gilbert v. Ann Arbor R. Co., 161 Mich. 73, 79, 125 N. W. 745. It follows that the motion to direct was rightly overruled.
“The elementary rule is that it is the duty of the employer to furnish appliances free from defects discoverable by the exercise of ordinary care, and that the employe has a right to rely upon this duty being performed, and that, whilst in entering the employment he assumes the ordinary risks incident to the business, he does not assume the risk arising from the neglect of the employer to perform the positive duty owing to the employé with respect to appliances furnished.”
See, also, Sterling Paper Co. v. Hamel, 207 Fed. 300, and decisions there cited, decided by this court June 30, 1913.
There is to be added the unusual force employed in kicking the cars and so causing excessive speed in their movement. The effect of such initial force and speed was disclosed by the proved results of the impact of the collision with standing cars, pointed out in the statement; and this is not in añy wise affected by the defense of contributory negligence, for, aside from the negative effect of the verdict as respects such negligence, no assignment was made to the court’s charge in that behalf. We cannot but conclude, from this and the other matters stated, that the jury was warranted in finding, as its verdict imports, both that the company was negligent and that there was causal relation between its negligence and Rice’s death.
It may be noted that while the cause of action arose after the amendment of April 5, 1910, adding section 9 to the Employer’s Liability Act (Act April 5, 1910, c. 143, 36 Stat. L. 291 [U. S. Comp. St. Supp. 1911, p. 1325]), and while the court told the jury that the matter of distribution of any recovery belonged to the county probate court, which was contrary to the rule laid down in Gulf, Colorado, etc., Ry. v. McGinnis, 228 U. S. 173, 33 Sup. Ct. 426, 57 L. Ed. 785, yet no allusion to the effect of the amendment or to that decision appears to have been made below, and of course no assignment of error in respect of either is presented here.
The assignments must be overruled, and the judgment of the court below affirmed, with costs.