201 F. 881 | 6th Cir. | 1913
Defendant in error (plaintiff below) recovered verdict and judgment against plaintiff in error (as defendant below) on account of injuries alleged to have been received by plaintiff while in defendant’s employ as brakeman.
Plaintiff’s testimony tended to show that while attempting, in the discharge of his duty, at one of defendant’s terminals, to climb to the top of a standing freight car, he reached up to seize the handhold or grabiron which should be upon the top of the car; that in his then position he could not see the top of the car, nor whether the handhold was there; that the handhold was in fact gone, with the result that plaintiff lost his footing (recovering himself, however, before reaching the ground), his abdomen striking “the handhold and (on?) the side of the car,” causing hernia and other permanent injuries.
Defendant’s alleged negligence with respect to maintaining this handhold was the only ground of liability submitted to the jury; and an instruction was given that no recovery could be had if the handhold was there at the time of the accident. Defendant introduced evidence that at and before the time of plaintiff’s injury the customary method of inspection at defendant’s terminals, as well as at those of other railroad companies, was to observe from the ground whether there were any apparent defects in the roof (which was visible from the ground), and if the roof looked sound and all right, and the bad order card showed nothing wrong with the roof, to make no further inspection.
Plaintiff had had several years’ experience in railroad operation, and had at one time been in the service of the Interstate Commerce Commission as safety appliance inspector. A few days before the accident, he had sustained a similar fall through lack of a grabiron on the top of a car. He testified that in his previous railroad experience he had frequently found grabirons missing from roofs of cars. In a letter written after the accident he said:
“Oar inspectors say they were not supposed to go on top of cars to inspect them, so that is why these things are not seen.”
On this evidence the defendant contended that plaintiff had assumed the risks incident to defendant’s method of inspection, and asked for direction of verdict accordingly. This being refused, an instruction was asked (likewise refused) that if defendant had a method of car inspection which did not include inspection of the roof grabirons, and- that this method of inspection was known to the plaintiff, the latter “assumed this method of work,” and could not recover on account of defendant’s failure to inspect the roof irons.
“No reason can be found for and no authority exists to support the contention -that an employé, either from his knowledge of the employer’s method of business or from a failure to use ordinary care to ascertain such methods, subjects himself to the risks of appliances being furnished, which contain defects that might have been discovered by reasonable inspection.* * * The employé is not compelled to pass judgment on the employer’s methods of business or to conclude as -to their adequacy. He has a right to assume that the employer will use reasonable care to make the appliances safe and to deal with those furnished, relying on this fact, subject, of course, to the exception which we have already stated, by which where an appliance is furnished an employé in which there exists a defect known to him or plainly observable by him, he cannot recover for an injury caused by such defective appliance, if, with the knowledge above stated, he negligently continues to use it.”
From the conclusion reached that plaintiff did not assume the risk resulting from lack of the grabiron through his knowledge of defendant’s custom in not making a roof inspection it follows that no prejudicial error was committed in the refusal to permit a cross-examination of plaintiff, when produced on rebuttal, as to his knowledge of the custom of railroads generally to omit such roof inspection.
There was a sharp conflict of testimony as to the facts of the absence of the grabiron and as to whether plaintiff’s injuries were the result of the alleged accident. The defendant gave evidence,- among other things, that on an inspection of the car, made as soon as information of the alleged defect was received, the grabiron was found securely in place, although somewhat bent, and that the plaintiff immediately following the accident was not treated for, and gave no evidence of the existence of the permanent injuries of which he now complains; defendant’s theory being that the alleged permanent injuries (other than hernia) were the result of disease having no relation to the accident.
The court clearly and pointedly stated to the jury the issues on both these questions, together with the claims of the respective parties, and to some extent summarized the testimony relating to both propositions, with comments upon certain features of the testimony. The learned judge expressed his opinion that the greater weight of the evidence favored plaintiff’s right of recovery. The court’s summary of the evidence on the question whether the handhold was missing is criticised as unduly emphasizing the plaintiff’s contention and not fairly stating that of defendant; and his summary of the facts as-to the extent of the injury is criticised in certain respects as an invasion of the province, of the jury, unwarranted by' the record, and highly prejudicial to defendant.
It should go without saying that, if the charge is subject to these criticisms, defendant is entitled to a new trial. It is conceded that the trial judge had the right to express his opinion upon the facts,' provided the jury were given clearly to understand that the court’s expression of opinion was not binding upon them, and that the jurors were the final and sole arbiters of the questions of fact. The court fully performed its duty in this regard.
Assignments of error numbered 4%, 9, and the first paragraph of No. 5, which are directed against certain parts of the charge as given, are unsupported by exception, and cannot be considered.
The judgment of the Circuit Court is affirmed, with costs.