SOUTHERN RY. CO. v. HOPKINS, 161 F. 266

BURNS, District. Judge. This suit, commenced in a state court, was removed by defendant to the Circuit Court of the United States for the Southern District of Georgia. The object of the action was for damages for personal injuries to plaintiff’s husband, resulting in death, whilst engaged as a conductor in the yards of the defendant at Augusta.

The pleadings of plaintiff allege that the deceased came to his death in the yards of the company at night while attempting to dismount from a moving car; that defendant was guilty o f negligence, in this: The car upon which deceased was sitting was defective by reason of a plank slightly elevated (about one-half inch) above the flooring and a nail which projected from the end thereof; that the pants of deceased caught upon the end of said plank and upon said nail, causing deceased to lose his balance and to be thrown in front of the car, one wheel of which passed over his body, resulting in'instant death.

The defendant denied each material allegation, and contended that the deceased was negligent in attempting to dismount while the car was in motion; that the same was a violation of the'rules established by the company, and, further, that it was the duty of the deceased to inspect the car and discover the defects, if any; that failure so to do was negligence. The plaintiff obtained a verdict and judgment for $7,500, and the defendant assigns the following errors: First. The refusal of the trial court to direct a verdict for the defendant.

It is frequently said that the servant must establish three propositions to entitle him to recover from the master for any injury received in the master’s business:

(1) That the appliance is defective; (3) that the master has notice thereof, or knowledge, or ought to have had; (3) that the servant did not know of the defect, and had not equal means of knowing with the master (Wood on M. & S. § 414). In the event the danger (in this case the defect) was as obvious and apparent to the employe as the master, he is not entitled to recover. The evidence discloses that the deceased was directed to go to an industrial plant, known as the Buckeye Cotton Oil Company, connected by spur track with line of defendant, and bring in certain cars.

This order was given between 4 and 5 o’clock the evening of the accident. The evidence fails to show at what time this order was executed, but it does appear that the accident occurred at about 7:35 p. m. upon the conductor’s return to what is known as the “Fenwick street yard.” The car upon which the conductor was seated was in front of the engine,, said car being an oil car containing a tank filled with oil at said plant.

The city ordinances of Augusta limit the speed of the trains to five miles per hour, and a flagman was preceding the train by walking ahead so as to signal in the event of danger to any person about to cross the track. The train consisted of engine and three cars, two in the^ rear of the engine and one in front, upon the northeast corner of which the conductor was seated.

Said train was moving east 'along Washington .street, and, when about opposite Fenwick street, the conductor attempted to dismount, and, in the language of John Jones, the only witness offered upon the trial who claims to have witnessed the accident: “At the time Oapt. Hopkins was killed, I was standing between Fenwick and Washington streets. He was sitting on the right-hand side, right at the end of the train. It was going at the rate of 1 Yz to 2 miles an hour. I saw him take his lantern and put it on his arm. He put his hand down and got up, swung, hung, and fell over.

He hung by a nail which hung on his pants. I saw what occurred from where I was standing. It was night. I was the length of this room away from him. I saw his trousers catch on the nail. After he fell, I went up there, but did not see the nail. I would consider it about 30 yards across this courtroom; that is about the distance I was away from Mr. Hopkins. I could see his pants hung. There was nothing else for him to be hung on. The nail stuck out from the right side of the car, right at its top. There was an electric are light on the other side of him.

The car had not quite reached the electric light.” Blount, chief inspector, and his assistant, Hood, were called a few minutes after the accident, and reached the scene before the car had been moved. They detail the character of inspection made, and both testify'that they carefully examined the plank and end.of the car upon which deceased was sitting, and from which he fell, and there was no defect and no nail. Blackston, at that time yard foreman, and still in the service of the company, stated upon direct examination that he examined the car and found the nail.

Upon cross-examination he admitted that he examined the car shortly after the accident with a lantern and failed to discover any nail, but that he examined the car again the next day in the Hamburg yards, across the Savannah river, and found the nail. The car was photographed about 20 days after the accident. The witness Blackston testified that the car had undergone no change since his examination.

Three photographs accompanj1the record, showing the car, and particularly the northeast corner thereof,' and by the use of a magnifying glass the nail may be observed in one of the pictures, but it is not discoverable in the others. The testimony of the inspectors is to the effect that the nail would be regarded’ as a defect or obstruction.

The only other evidence tending to support the nail theory is that the .pants disclosed a rent in the rear, reaching nearly to the waist band, but the evidence shows that the body of the deceased was dragged by the brake beam, and this may as readily account for the rent as the protruding nail. The fact that the nail was present the day after the accident is not material, and but a slight circumstance to indicate its presence at the time of the accident.

The witness Blackston is perhaps not too zealous in aiding the administration of the justice of the case, but the suggestion occurs that, in the event a witness could plainly see the nail when only the head of it was exposed to his vision a distance of “thirty yards,” this witness who was making examination for the sole purpose of locating the defect ought to have made the discovery of that which was so patent to the main witness. The result is one witness, Jones, claims to have ■seen the nail whilst, standing across the street. Blackston, the yard foreman, examined the car with his lantern and failed to find it.

Two witnesses, Blount and Hood, looking for the defect in the board upon which deceased was sitting, positively declare there was no nail. We are of the opinion that the preponderance of the testimony establishes the absetice of the nail at the time of the accident, but under the holding obtaining here and elsewhere the trial court would not be justified in withdrawing the case from the jury, though it is difficult to appreciate, under the facts of this case, that the burden of proof resting upon the plaintiff to establish the defect has been fully discharged.

Matters of this kind in most jurisdictions are committed to the sound discretion of the trial court in determining whether or not the verdict shall stand as the judgment of that court, and, where there is any positive evidence tending to establish a material fact, we are not at liberty to sustain an assignment based upon tlic refusal to direct a verdict for the defendant.

The next contention of the defendant is that the verdict should have been directed for the defendant by reason of the fact that under the rules and custom obtaining with tins company, and well known to the deceased, it was his duty to make the inspection of the car at the mill of the cotton oil company, and that his failure constitutes negligence, and upon the further ground that the deceased, well knew that the custom had long obtained upon the part of the company not to inspect any cars at industrial plants, and, by reason of this custom and the failure upon his part to make the inspection, he was guilty of negligence and not euriried to recover.

In answer to the suggestion as to the printed rules of the company, as offered in evidence, a copy of which had been furnished the deceased (his receipt therefor being introduced by defendant), it is difficult to say that the rule relied upon places the duty of inspection, at such places, upon the conductor.

Evidence was introduced to the effect that the rule in question only charged conductors with the duty of inspection while operating trains upon the road, and courts will not give a larger intendment to the rule than the language thereof clearly permits; the rationale being to limit, and not to extend, such instruments. The construction should be strict, rather than latitudinous.

Upon the proposition that the custom long obtaining and well known to the deceased, that this defendant only made inspection of cars in its yards, and not elsewhere, operated to preclude the deceased from relying upon inspection at any other place or point, it is deemed sufficient to say that, in the absence of a rule plainly governing a like situation, the deceased was not called upon to perform a duty resting upon the master to see that the car was in a reasonably safe condition.

This is a legal requirement upon the part of the master which he cannot escape, and it follows as a matter oí law that the train employé will not be denied a recovery for failing to detect a dangerous defect in a car, unless it be such danger or defect, as is patent and obvious. We cannot, therefore, consent to the adoption of the view that the verdict should have been directed for the defendant upon the ground that the facts of this case make an exception to the general rule.

It does not conclusively appear that the defect was so patent and open to observation as to preclude plaintiff’s right to submit the question to the jury. For the reasons stated, the assignment is not sustained. In this connection it may not be improper to observe, however, that the charge of the court submits to the jury the question of negligence upon the part of the defendant in permitting the raised board to remain upon the car.

This is not assigned as error, but clearly the case should not have gone to the jury on this issue for the reason that this, was a foreign car, and while the duty is the same in regard to inspection as if it were a domestic car — that is, the property of the comp?"" • — the plank in question was an integral part thereof, and, if defect c the law would charge a knowledge thereof to the man who sat upon it from the time the car was placed in motion until he went to his death.

Besides the whole testimony as to the cause of the accident, that of the witness Jones affirmatively discloses that the plank had no connection with the injury. To charge upon an issue not supported by evidence is uniformly condemned, and under the facts of this case, if assigned, would operate as a reversal.

The next assignment complains of that part of the charge which instructs the jury that: “In the absence, however, of any proof to the contrary, it will be presumed that he [the conductor] attempted to dismount from the car for some reason essential to the performance of his duty.” We are of the opinion that the charge is erroneous, in that it invades the province of the jury. The only question for the jury to determine bearing upon the act of the conductor in attempting to dismount from a moving train is whether or not he was guilty of negligence which contributed to the accident.

The jury may have readily understood that, if the act itself was induced by a desire and necessity to perform a service due the master, the act and effort to serve the master would not be negligent. The holding is uniform that questions of fact are for the jury, and that a charge which assumes to determine a material fact is an invasion of the province of the jury. This proposition is supported by the following authorities: Railway Co. v. Jones, 130 Ala. 456, 30 South. 586 ; Railway Co. v. George, 94 Ala. 199, 10 South. 145; Carroll v. Railway Co., 82 Ga. 452, 10 S. E. 163, 6 L. R. A. 214; Railway Co. v.

Roach, 64 Ga. 635; Railway Co. v. Wangelin, 152 Ill. 138, 38 N. E. 760; Railway Co. v. Warner, 123 Ill. 38, 14 N. E. 206; Railway Co. v. Morgan, 132 Ind. 430, 31 N. E. 661, 32 N. E. 85 ; Dolphin v. Plumley, 175 Mass. 304, 56 N. E. 281; Avilla v. Nash, 117 Mass. 318; McGrath v. Railway, 76 Minn. 146, 78 N. W. 972; Bluedorn v. Railway, 121 Mo. 258, 25 S. W. 943; Marcus v. Loane, 133 N. C. 54, 45 S. E. 354; Bodie v. Railway, 66 S. C. 302, 44 S. E. 943; Railway v. Smith (Tex. Civ. App.) 82 S. W. 787; Railway v. Burns (Tex. Civ. App.) 63 S. W. 1035; Railway v Waller (Tex. Civ. App.) 62 S. W. 554; Railway v.

Baker (Tex. Civ. App.) 58 S. W. 964; Railway v. Smith (Tex. Civ. App.) 51 S. W. 506; Railway v. Zapp (Tex. Civ. App.) 49 S. W. 673; Railway v. Gaither (Tex. Civ. App.) 35 S. W. 179; McKelvey v. Railway, 35 W. Va. 500, 14 S. E. 261; Railway v. Camp, 105 Fed. 212, 44 C. C. A. 451; Railway v. McClintock, 91 Fed. 223, 33 C. C. A. 466. Having readied a disposition of the case, it is not deemed essential that the two remaining assignments should be discussed.

By reason of giving the charge complained of, the judgment of the Circuit Court should be reversed, and the cause remanded with instructions to grant a new trial; and it is so ordered.