HESKETT v. PENNSYLVANIA CO., 245 F. 326

KNAPPEN, Circuit Judge. Plaintiff in error, who was plaintiff below, was in the employ of defendant in error as a member of a special

section gang of 20 to 30 men engaged in resurfacing track and making fills with slag, which was hauled for the purpose on cars drawn by a yard engine operated by a regular crew; the engine being provided at both the tender and pilot ends with footboard and grabirons or handholds.

For the purpose of riding to- dinner at the camp maintained by the railroad company, plaintiff attempted to step on the footboard on the front or pilot end of the engine, which was then moving, tender foremost, at a speed of 8 to 12 miles an hour and hauling six empty cars; he missed either his footing or his handhold, fell under the cars, and lost a leg.

Plaintiff claims that the accident was due to the negligent presence on the pilot, unknown to him, of a “turtleback” which so protruded over the footboard and handhold as to contact with plaintiff’s hand, preventing his grasping the handhold, and causing him to lose his balance.

Defendant denied that there was a turtleback on the pilot, gave evidence tending to show that plaintiff’s fall was due to stumbling when trying to mount the footboard, and that his attempt to mount the moving train was in disobedience of express instruction to the contrary, which disobedience directly and proximately caused the accident; also pleading that plaintiff was guilty of contributory negligence in attempting to board the moving engine in the manner adopted and under the existing conditions.

At the conclusion of the testimony on the trial the jury was instructed that (in the absence of warning to plaintiff not to get on moving trains or engines) it was defendant’s duty to keep the handhold accessible, and it would be liable for permitting the turtleback to be so laid upon the pilot as to cause plaintiff’s accident, through his inability to seize the handhold, and that in such case, if plaintiff’s negligence was slight and that of the defendant greater in comparison, the damages must be diminished in proportion to the amount of negligence attributable to plaintiff.

The court further charged, however, that: If plaintiff was warned before the accident, “as the defendant claims,” not to attempt to get upon trains or engines when in motion, “then, under the circumstances shown in this case with respect to the speed of the engine and the small space between the engine and the car, where [plaintiff] says he attempted to mount the engine, the plaintiff would not be entitled to a verdict in his favor even if the railroad company was negligent, as he claims that it was, because having warned him not to attempt what he did attempt to do, the company was under no legal duty to mate conditions safe for him if he violated that warning.” Defendant had verdict and judgment.

The only question before us concerns the correctness of this latter instruction. The instruction was proper only upon the theory that defendant owed plaintiff no duty to keep conditions on the pilot safe for plaintiff, and was thus not itself negligent. The accident happened in Ohio.

Section 8951 of the General Code forbids a common carrier to haul a locomotive “not provided with secure grabirons or handholds in the sides and ends thereof”; and we have no doubt that making the handhold inoperative by carrying a turtleback on the pilot is within the statute. See by analogy United States v. Illinois Central R. R. Co. (C. C. A. 6) 177 Fed. 801, 101 C. C. A. 15. Plaintiff’s contributory negligence did not necessarily bar recovery.

Section 9018 of the General Code of Ohio provides that: In actions brought against a railroad company for personal injuries to an employé the fact that the latter is “guilty of contributory negligence shall not bar a recovery when such negligence was slight and that of the employer greater, in comparison. But the damages must be diminished by the jury in proportion to the amount of negligence attributable to such employe.

All questions' of negligence and contributory negligence shall be for the jury.” This statute abolished the common-law rule of contributory negligence as an absolute defense in bar, and adopts the rule of comparative negligence, in cases where the negligence of the plaintiff is slight and that of the defendant greater in comparison. The questions whether plaintiff’s negligence was slight as compared with that of defendant, as well as of comparative degrees of negligence, were for the jury (Lewis v. P., C., C. & St. L. Ry. Co., supra; Sherman v. T. & O. C. Ry. Co., 25 O. C.

D. 449, 453, affirmed 88 Ohio St. 617, 106 N. E. 1083); as was also the question of proximate cause (Erie R. R. Co. v. White, 187 Fed. at page 559, 109 C. C. A. 322; Hales v. Mich. Central R. R. Co. [C. C. A. 6] 200 Fed. 533, 537, 118 C. C. A. 627). Should we take judicial cognizance of the fact that defendant was engaged in interstate commerce, and the Federal Safety Appliance Act (Act March 2, 1893, c. 196, 27 Stat. 531 [Comp. St. 1916, §§ 8605-8612]) thus exclusively applicable (Texas & Pacific R. R. Co. v. Rigsby, 241 U. S. 33, 37, 41, 36 Sup. Ct. 482, 60 L.

Ed. 874), the situation, under familiar rules, would be even more favorable to plaintiff, so far as the defense of contributory negligence is concerned. But we construe the criticized instruction as not intended (as plaintiff in error regards it) to relate to the subject of plaintiff’s negligence, which was elsewhere properly treated, but only to defendant’s negligence, although considerations of speed of train and small space between engine and car, mentioned by the court, related only to that subject.

In its instructions concerning the alleged warning, the court rightly disregarded an alleged general rule of defendant prohibiting the mounting of moving cars, for lack of evidence of its applicability to members of the

section gang in question. We think the criticized instruction was proper, provided the warning referred to amounted to an actual and subsisting prohibition, so understood by plaintiff, against mounting a moving train. If it fell short of that, its disregard would be at most merely contributory negligence. We arc not satisfied that the jury would naturally understand the instruction as relating to an actual prohibition of that character. While there was express testimony that the members of the work gang generally, including plaintiff, had been warned by the

section foreman and the train conductor every morning (including the morning of the day of the accident) not to attempt to get on or off a moving train, it was not only undisputed that the men were permitted to ride on the cars between the camp and the place of work (the foreman testifying, “Of course they ride on the train going to and from their work”), the only limitation being the asserted warning — not conceded, but denied — against getting on or off the cars when in motion; but there was also substantial testimony that the members of the work gang were in the habit of getting on and off the moving trains for the purpose of riding between the camp and the place of work, without objection or protest from the foreman or conductor; that the train never stopped for the purpose of letting the men on or off, the foreman telling them to “just pile on the best you can.” The testimony would support a. conclusion that the alleged warnings were never enforced, but were habitually disregarded, with the apparent acquiescence and implied approval of the officers whose duty it was to enforce them — the foreman even admitting that he himself sometimes got off and on the train when in motion.

But even if the proof fell short of an inference that the conductor so approved, a warning by the gang foreman would, under the instruction, bar recovery.

Moreover, to warn does not necessarily mean to “forbid”; it may mean only to “caution” or “admonish.” In fact the foreman said at one point in his testimony: “I had seen the men getting on and off the moving cars previously lots of times, but I always warn them when going on the main track to he very careful about getting on and off moving cars when they were on the main track.” But, whatever may be the definition of the word “warn,” a railroad company cannot categorically prohibit, and at the same.time constantly permit, its employes to mount moving cars and still escape responsibility. Spaulding v.

Railroad, 98 Iowa, 205, 211, 67 N. W. 227; No. Pacific R. R. Co. v. Nickels (C. C. A. 8) 50 Fed. 718, 722, 1 C. C. A. 625; Knickerbocker Ice Co. v. Finn (C. C. A. 2) 80 Fed. 483, 25 C. C. A. 579; Eastman v. Railroad Co., 101 Mich. 597, 602, 60 N. W. 309; Railroad Co. v. Reagan, 96 Tenn. 128, 139, 140, 33 S. W. 1050.

In this state of the testimony, an unqualified instruction relieving the defendant, as matter of law, from all liability in case the claimed warning had been given, was, in our opinion, erroneous; for we think the jury may not unreasonably have understood it as forbidding recovery from the mere fact of verbal warning at any previous time, regardless of the question of defendant’s implied permission to the contrary. For this reason the judgment must be reversed, and the cause remanded to the District Court, with directions to award a new trial.

A turtleback is described as a channeled and flanged piece of iron, about 3 feet long and 6 inches wide, tapered down at each end and higher in the center, weighing from 50 to 150 pounds, and used 1'or rerailing cars.' Lewis v. P., C., C. & St. L. Ry. Co., 89 Ohio St. 9, 13, 104 N. E. 1002; Erie R. R. Co. v. White (C. C. A. 6) 187 Fed. 556, 558, 109 C. C. A. 322; Erie R. R. Co. v. Kennedy (C. C. A. 6) 191 Fed. 332, 335, 112 C. C. A. 76; Standard Steel Tube Co. v. Prusakicueicz, 23 O. O. D. 133, 136, affirmed 87 Ohio St. 472 102 N.

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