CHESAPEAKE & O. R. CO. v. HENNESSEY, 96 F. 713

LURTON, Circuit Judge, after malting the foregoing statement of facts, delivered the opinion of the court. If the railroad company is liable to Hennessey, upon the undisputed facts of this case, it must be either because it was negligent in permitting the car in question to be and remain in the damaged and dangerous condition it was when Hennessey, in the course of his duly, undertook to couple it to another car, or because it was negligent in not giving to Hennessey notice of that condition before allowing him to make the coupling. 1.

Was the company responsible for the condition of the car which Hennessey was hurt in coupling? There is no positive evidence as to when or how the car was damaged or its load displaced. But whether the car had been damaged on the road or in the yard, or the load become displaced before or after it reached the yard, the car had in fact been withdrawn from use, and placed upon the tracks devoted to damaged or improperly loaded cars. The presumption is that it was placed there, not only on account of its displaced load, but also because of its defective condition.

In the view we take of the principles of law which, govern the case, it is unimportant whether it was placed there for both reasons or only one, and equally unimportant whether the damaged condition had been discovered by the inspector before it was sent to the shop track or not. The fact is, a badly damaged car, with a badly displaced load, displaced, presumptively, as a consequence of the defective character of the car, was standing upon a track devoted primarily to damaged cars. What was the significance of the fact that this car was standing upon the shop or repair track? Hennessey was an old employd.

He had worked in this yard for about three years, and was the foreman of his crew. He knew the uses to which tracks 8 and 9 were devoted. That occasionally a car neither defective nor badly loaded was found upon that track is of no moment. The primary use of those tracks was for the storage and repair of damaged cars. From six to eight hundred cars went through this yard every day. They were there stopped and inspected. Cars damaged were taken out from the trains, and placed on one or tbe other of these tracts. When full, as sometimes happened, such cars were temporarily placed on other tracts.

The evidence was that from six to twenty cars were found defective and stopped each day. Hennessey was employed as a switchman in this yard, and it was part of his duty to handle these damaged cars. He might find such cars on any of the tracts. He tnew that the great majority of those standing on the repair tracts had been placed there because they were defective. To get out cars from that tract was a part of his duty. It was a duty of each day. To get out cars which had been repaired involved the coupling together of the whole train of separated cars.

Among the repaired cars, his experience advised him, were cars too badly damaged to be repaired at Russell, and which it would be his duty to get out and place where they would be transferred to the general shops at Huntington. So he knew that there would be found on the track cars not yet repaired, which would have to be put back after getting out the repaired cars. Manifestly, his duty involved the handling of cars not fitted for use and dangers not incident to the ordinary work of one engaged in the ordinary operation of a train oí cars.

That a railway company is under obligation to its em-ployés to exercise every reasonable precaution to see to it that damaged cars are not admitted into its trains is well established. Hough v. Railway Co., 100 U. S. 213; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590; Railway Co. v. Archibald, 170 U. S. 665, 18 Sup. Ct. 777; Felton v. Bullard (decided by this court May 15, 1899, and not yet officially reported) 94 Fed. 781. That employés may ordinarily rely upon this being the case is also elementary.

The rule stated is but an application of the general rule that the master personally owes to the servant the duty of using care and caution in providing for his use reasonably safe instrumentalities of service. Felton v. Bullard, cited above; Hough v. Railway Co., 100 U. S. 213; Gardner v. Railroad Co., 150 U. S. 349-355, 14 Sup. Ct. 140; Shear. & R. Neg. § 194. This, as to railway companies, involves the duty of inspection and of removing from trains all cars found defective.

Unless damaged cars are removed from the trains wherein they have become damaged, and placed where they can be repaired, how is the master to provide reasonably safe cars to those servants who are engaged in the operation of his trains, and who have a right to rely upon the master to see that defective cars are not admitted to its trains or continued in use after they become damaged?

The rule is well settled that if the work of the employé consists, in whole or part, in dealing with damaged or defective cars, and which, by the very nature of his occupation, he must know, or have reason to know, are unsafe and dangerous, he voluntarily assumes the risk and hazards which are incident to the duty he has engaged to perform.

It is not a case where dangerous or defective instrumentalities are supplied by the master to be used in his work, and where notice of. such danger should be given, but a case where the instru-mentalities to be handled and worked with or upon are understood to involve peril and to demand unusual care. In such cases, the risk is assumed by the servant as within the terms of his contract, and compensated by his wages. Arnold v. Canal Co., 125 N. Y. 15, 23 N. E. 1064; Yeaton v. Railroad Corp., 135 Mass. 418; Watson v. Railway Co., 58 Tex. 434; Fraker v. Railway Co., 32 Minn. 54, 19 N. W. 349; Kelley v.

Railway Co., 35 Minn. 490, 29 N. W. 173; Flanagan v. Railway Co., 45 Wis. 98; Flannagan v. Railway Co., 50 Wis. 462. 7 N. W. 337; Railroad Co. v. Ward, 61 Ill. 130. In Narramore v.

Railway Co. (decided at this term of this court) 96 Fed. 301, Taft, circuit judge, used the following language in de-lining (his doctrine of assumption of risk: •‘Assumption of risk ⅛ a term of the contract, express, or implied from the circumstances of the employment, by which the servant agrees that dangers of injury obviously incident to the discharge of the servant’s duty shall be at the servant’s risk.' In such cases, the acquiescence of the servant in the conduct of the master does not defeat a right of action on the ground that the servant causes or contributes to cause the injury to himself, but the correct statement is that no right of action arises in tavor of the servant at all; for, irirter the terms of the employment, the master violates no legal duty to the servant in failing fo protect him from dangers the risk of which he agreed expressly or impliedly to assume.

The master is not, therefore, guilty of actionable negligence towards the servan!.” 2. But it is said that this car was not marked “Shop,” and that it was the custom and usage of the yard to thus designate defective ears. This involves the question as to whether the master personally owes to bis servants engaged voluntarily, as an ordinary and expected part of their work, in the handling of cars which are defective, and therefore dangerous, the duly of giving personal notice as xo the particular car which is defective.

The fact that this yard was an inspection point, and that great numbers of broken cars were left there because of their broken and dangerous condition, was known to Hennessey and his co-laborers in the yard. That his duty was to handle such cars, as well as sound cars, is not disputed. Thus, he was daily engaged in a work and at a place which required him to look out for cars which, from their condition, were dangerous to handle.

The fact that the defects might not always be obvious, or that some other servant whose duty it was to designate the par-1 ieulnr cars which were damaged might neglect that duty, or might insufficiently give notice, constituted part of the very risk incident to the kind of work in which he had voluntarily engaged. The general usage of the yard seems to have been to designate damaged cars in two ways, — by marking on the side of the car in chalk the word “Shop,” and by placing the car upon the tracks devoted to broken and badly-loaded cars, and which for one or the other reason had been withdrawn from use.

Assuming, in view of the conflict of evidence, that this car had not been marked “Shop,” was that a default in duty which the master personally owed to Hennessey, or was it the neglect of a fellow servant? 'That a car inspector, in respect of the duty of admitting to the trains of the company cars which are defective and dangerous, or in excluding from such trains cars which become dangerous, is the representative of the master, and not the fellow servant of employés engaged in the operation of trains, is well settled. Felton v. Bullard, cited above. But that rule has no application here.

Whether the car inspector employed in this yard bad in fact inspected this car, and retired it from use,, is not disclosed by any positive evidence. The facts that it was badly damaged, as well as that its load had become displaced, were very obvious facts. That the car had been stopped at Russell, though destined for a point beyond, and had been placed upon the shop track, raises a plain presumption that the car had been withdrawn from use by the inspectors, or some other authority, because of its condition. The result to be accomplished by inspection had happened.

The car was withdrawn from use, and placed where a car so withdrawn should be placed under the rule of the yard. The neglect to mark the car “¿hop” was a neglect of another part of the general practice or usage of the yard, — a neglect of a detail of the duty of the inspector or other servant who had withdrawn this car from use, and caused it to be placed where Hennessey found it. In Arnold v. Canal Co., 125 N. Y. 15, 18, 25 N.

E. 1064, “the rule and custom of the business in the yard was to chain up or prop up a defective d'rawhead which, had fallen below its proper level, in order to make the couplings meet.” This was not done in Arnold’s case, and he sustained his hurt, as he claimed, because of the absence of this sort of notice. The court said: “That was a detail of the servant’s work in the yard, and not the master’s duty to the servant.” In Yeaton v. Railroad Corp., 135 Mass. 418-420, there was a practice for the yard master to give notice to the switchmen of the defective condition of cars which they were called upon to move.

Yea-ton was an old employé, and much engaged in handling broken cars in the yard, and accustomed to receive personal notice, but also accustomed to examine for himself. The court said: “Notice was expected to be received in such cases, but be was also in the babit of looking for bimself. It was incident to a service of tbis description that broken ears might sometimes be put in the wrong place in the yard, and that insufficient notice of defects in them, and of their being put in the wrong place, might be given.

These are omissions of notice in respect to matters of detail, which cannot be given in advance, and which are not like an omission to give instructions to an inexperienced hand as to the general-dangers to which his service will expose him. The duty of giving notice-which rests upon a master in such case was recognized and upheld in the-case of Wheeler v. Manufacturing Co., 135 Mass. 294. The distinction between the two cases is plain.

The one is a notice of the nature of the risk and peril to be incurred in the course of the employment; the other is a notice of the special danger which springs out of a particular fact, which, in its-details, cannot be anticipated.

The danger 'arising from the attempt to move a particular car which may happen to come into the yards for repairs, like-the danger which would arise from an attempt to split upon a circular saw a particular warped board, is one which, is the nature of the case, it is impossible for a master to point out on every occasion when the workman may be called upon in the course of his employment to use such material.

If there was a neglect in such case to give such information to the plaintiff as ought to be given by one upon whom the duty has been devolved by the master, such neglect is to be treated as that of a fellow servant, and the risk of it must fall within the ordinary rule; because it was an incident to the service which the plaintiff undertook that broken cars might be put in the wrong place in the yard, and that insufficient notice of the defects in them might be given.

This is not like a case where dangerous or defective-machinery is supplied by a master for a servant to use in his work, and where notice of such danger or defect ought to be given; but it is a case where-1lie material to bo handled and to be worked upon is understood to involve risk and the necessity of care. There was no negligence upon the part of the defendant in sending broken cars for repairs to the yard where the plaintiff was at work. This was a proper place for .them.

There was no negligence in omitting to give notice to tile plaintiff that broken cars were to be sent to this yard for rex>airs, and that his employment included the duty of handling and moving them. All this ho knew already. What he did not know was dial this patücular car was broken, and that broken cars which were sent for repairs might be found in Unit part of the yard where this car was.

While not disposed io relax the strictness of the rule which requires a master to give fair and reasonable information and instruction to a young, ignorant, or inexperienced servant, as to 1he perils incident to his employment, we cannot, find any warrant, either on principle or on authority, for extending it to a case like the present. Upon the undisputed facts, the risk was one which the law cast upon the plaintiff.” To the same general effect are the cases of Fraker v. Railway Co., 32 Minn. 54, 19 N. W. 349, and Railway Co. v. Ward, 61 Ill. 130.

But, aside from this question that the neglect to mark this car with the word “Shop” whs the negligence of a fellow servant, there remains Hie fact that the warning given by the presence of this car upon the track devoted primarily to damaged cars was in itself a notice to Hennessey, which he could not disregard without assuming all the consequences. That sometimes cars were placed on these shop tracks which were not defective is of no significance, in view of the general uses to which those tracks were devoted.

In view of the general duty which rested upon Hennessey to handle damaged as well as sound cars in this yard, he had no right to assume that any car found upon these shop tracks was undamaged. lie says he did not see its drawhead. and could not well do so on account of the overreaching load. Yet he assumed its drawhead was in good condition, and, without personal inspection, undertook the coupling. If this car had been in use, lie would be justified in assuming, where the defect was not obvious, that the master had discharged his duty in excluding from use all cars which were dangerous by reason of some defect.

But this presumption did not exist in reference to this car. The defect was one very easily discovered. The slightest inspection would have advised an experienced brakeman like Hennes-sey that the end of the car was sagged, and the drawhead below its proper level. Under such circumstances, be assumed the risk, and has no right to say that he relied upon the master’s obligation to furnish him safe instrumentalities. This case was tried upon a totally wrong conception of the principles of law applicable.

The request at the conclusion of the whole of the evidence for an instruction to find for the plaintiff in error should have been given. The risk incident to the coupling of this car as a defective car was assumed by the defendant in error. He was also grossly negligent in assuming, without examination, that the drawhead of the car in question was sound. Under no reasonable view which could be taken of the case could there have been a verdict in favor of the defendant in error. Reverse the case, and remand for a new trial.