Byers v. Carnegie Steel Co.

159 F. 347, 16 L.R.A.N.S. 214, 1908 U.S. App. LEXIS 4065

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 25, 1908
• Docket: No. 1,712
• Status: Published

Opinion

KNAPPEN, District Judge

(after stating the facts as above). If the evidence of the operators of the lever, to the effect that it had not been touched since the elevator was lowered five minutes before the accident and the lever then left at extreme reverse, is to be believed, any inference that the sudden starting was due to a premature movement of the lever on the part of the operator, and thus through the negligence of plaintiff’s fellow servant, was excluded. If the testimony of the expert Popovich is likewise to be believed, the sudden rising of the elevator could have been due only to a loose working of the spools, and there was no affirmative evidence that the spools were not working loosely. If the testimony of the witness Plarrof is to be believed, the inference is permissible that the valves had been in an abnormal and dangerous condition for two or three months before the accident, and so plainly abnormal and dangerous, in view of the testimony as to the use of the rope and its reported burning off and resupplying, as to justify an inference that the defendant company knew, or by the exercise of ordinary care should have known, of this abnormal and dangerous condition. We are asked,to disregard Harrof’s testimony; but, in the absence, of established facts and circumstances with which that testimony could not be reconciled, we cannot say that it is not credible. Moreover, if the testimony of the witness Seaborn is to be believed, the defendant had actual notice, on the day of the accident, that the spools were working loosely, and the testimony of the witness Popovich, if believed, was evidence that no sufficient inspection was made after such express notice to determine whether the defect had been remedied. In a word, if the undisputed testimony of the witnesses referred to is to be believed, the cause of the accident is not wrapped in doubt and mystery, but the inference would be fairly permissible that it must have been due to a defective valve, and that this defective condition should have been known to the defendant in the exercise of ordinary care.

Upon the record before the court on the former review it was held that the fact of plaintiff’s injury justified no inference of defendant’s negligence, for there the evidence was too conjectural to justify an inference that the injury was not the result of a risk plaintiff assumed, as the negligence of the operator of the lever, but was, on the other hand, due to a defect which the defendant knew, or should have known, existed. This holding, under the circumstances there presented, was amply supported by the authorities cited in the former opinion.

It is the general rule, in actions by employés for negligent injuries, that the mere fact of an injury raises no presumption of negligence on the part of the employer. In Patton v. Texas & Pacific Ry. Co., 179 U. S. 658, 21 Sup. Ct. 275, 45 L. Ed. 361, it is said that while in the case of a passenger the fact of an accident carries with it a presumption of negligence' on the part of the carrier, a presumption which in the absence of some explanation or proof to the contrary is sufficient to sustain a verdict against him, a different rule obtains against an employé; that the fact of accident carries with it no presumption of negligence on the part of the employer, but that it is an affirmative fact for the injured employé to establish that the employer has been guilty of negligence, the court saying:

“When the testimony leaves the matter uncertain, and shows that any one of a half dozen things may have brought about the injury, for some of which the employer is responsible and for some of which he is not, it is not for the jury to guess between these half dozen causes, and find that the negligence of the employer was the real cause, when there is no satisfactory foundation in the testimony for that conclusion.”

As stated by this court in Cincinnati, etc., Ry. Co. v. South Fork Coal Co., 139 Fed. 528, 71 C. C. A. 316, 324, 1 L. R. A. (N. S.) 533, the reason for the difference in the rule of presumption between actions by employés and actions by those not sustaining such relation, is the peculiar contract of the employé by which he assumes the risks incident to his employment, including the negligence of his fellow servants, and the resulting requirement that the injured employé show that the injury of which he complains was the result of a risk he did not assume. The rule stated in Patton v. Texas & Pacific Ry. Co. has been applied by this court in Illinois Central R. R. Co. v. Coughlin, 132 Fed. 801, 65 C. C. A. 101, 103 — where the foregoing extract from the opinion in Patton v. Railroad Company was quoted — and in Carnegie Steel Co. v. Byers, 149 Fed. 667, 82 C. C. A. 115, 117, 8 L. R. A. (N. S.) 677, upon the former hearing of this case. In each of the cases cited the inference of negligence as to risks not assumed by the employé was held to depend upon conjecture. But there is no hard and fast rule that the doctrine of res ipsa loquitur can in no case be applicable in a suit by an employé against a,n employer for negligent injuries. On the contrary, the rule referred to has been applied in numerous cases of that nature, the applicability of the rule being determined by the circumstances under which the accident is shown to have happened.

In Griffin v. Boston & Albany R. R., 148 Mass. 143, 19 N. E. 166, 1 L. R. A. 698, 12 Am. St. Rep. 526, which was an action by an employe for alleged negligent injury, it was said (page 146 of 148 Mass., page 167 of 19 N. E. [1 L. R. A. 698, 12 Am. St. Rep. 526]):

“No general rule can be laid down that the mere occurrence oí an accident is or is not sufficient prima facie proof of actionable negligence, for each case must depend upon its own circumstances; and what would be sufficient proof of such negligence in an action brought against a railroad company by a passenger, or by a stranger, might not be so in an action brought by one of its servants.”

And, as stated elsewhere in the same opinion (page 145 of 148 Mass., page 167 of 19 N. E. [1 L. R. A. 698, 12 Am. St. Rep. 526]):

"If the accident appears upon the evidence to be as consistent with the absence of negligence for which the defendant is responsible as with the existence of such negligence, the plaintiff must fail, and the case should not ?oe left to the jury.”

In Hamilton v. Kansas City Southern Ry. Co., 123 Mo. App. 619, 100 S. W. 671, 674, it is not altogether inaptly suggested that the difference between the rule res ipsa loquitur as applied to a passenger or stranger and a servant is that in the case of a passenger a presumption aids the occurrence to speak, while in the case of a servant there is no such aid, and the occurrence itself must speak its character.

Among the cases in which the rule of presumption or prima -facie evidence of negligence has been applied in favor of employes are Sullivan v. Rowe, 80 N. E. (Mass.) 459; Hemphill v. Buck Creek Lbr. Co., 141 N. C. 487, 54 S. E. 420; Sackewitz v. Amer. Bis. Mfg. Co., 78 Mo. App. 144, 151; Gorman v. Milliken (Sup.) 86 N. Y. Supp. 699; Moynihan v. Hills Co., 146 Mass. 586, 16 N. E. 574, 4 Am. St. Rep. 348. In Sullivan v. Rowe, where a buffer iron, used to stop at a desired point buckets running along the iron rail of a trench machine owned and operated by defendant, slipped off a bolt on which it was hung, by reason of the coming out of the split key used to hold it in place, and fell on the plaintiff, an employé of the defendant, while working in a trench below the machine, the occurrence was held to be of itself evidence of negligence, the evidence being conflicting as to whether or not, at the time of the accident, there was a 'rope attached to the bolt on which the buffer iron was hung which would prevent it from falling in case the split keys came out. In Hemphill v. Buck Creek Lumber Co., where a brakeman was injured because of the derailment of a car on which he was riding, occurring through a spreading of the track on account of the rotten cross-ties, it was held that a presumption of negligence on the part of the master arose. In Sackewitz v. American Biscuit Mfg. Co., the plaintiff, a packer in the factory, was struck by the falling of a piece of timber which was being used in making repairs to the building. It was held that the circumstances under which the plaintiff was injured were such as to create a presumption of negligence, and that the doctrine, of res ipsa loquitur was applicable. In Gorman v. Milliken, where a derrick furnished by the employer fell, injuring an employé, the failure of the master to explain the fall was held prima facie evidence of his negligence, the court saying that “the burden of proof is not shifted to the defendant by evidence of the fall of the derrick, as is claimed by the plaintiff, but the burden imposed upon the plaintiff of showing defendant’s negligence is met by evidence of the fall of the derrick.” Moynihan v. Hills Co. contains a valuable discussion of the rules governing the assumption of risk by an employé with reference to failure to inspect and repair machinery; and is authority for the proposition that the elevator in question, not being a machine whose condition as to safety is constantly changing with its use, so as to require from the persons tending it, as a part of the ordinary use of it, reconstruction or readjustment of parts, as they become worn out or displaced, for materials or new parts supplied by the master for that purpose, neither Harrof, the mere operator of the lever, nor the millwrights were, with respect to the performance of duties of inspection and repair, fellow servants of the plaintiff.

It is true that no one has testified in this case, from actual view of the valve, .that it was out of repair. But the evidence presented by the plaintiff, if believed, excludes any other cause for the accident; and in such case it is open to the jury to infer the existence of such cause, even in an action by an employé. This rule has been frequently recognized, Thus: In McLean v. Pere Marquette R. R. Co., 137 Mich. 482, 485, 10 N. W. 748, a railroad company permitted planing mill refuse to be loaded loosely on an open rack car, so that as the car was being transported some of the material was likely^ to be dropped from the car. The plaintiff, a section hand, was injured by derailment of a hand car, apparently caused by its striking, upon the rail, a piece of wood of the same material as that with which the car (which had lately passed over the track) was loaded. There was no other probable theory of the cause of the accident. The evidence as to whether the suction of the train upon such a piece of wood could have caused it to lodge on the track was conflicting. It was held that it was open to the jury to infer from the testimony that the piece of wood had fallen from the car. In Schoepper v. Chemical Co., 113 Mich. 582, 586, 71 N. W. 1081, where an employé was injured by the explosion of chemicals, the cause of which was not susceptible of absolute demonstration, but there was room for drawing inferences better supported upon plaintiff’s theory than upon that of the defendant, it was held that the cause of the injury did not rest wholly upon conjecture, and that it was open to the jury to infer the cause of the accident from the circumstances attending it. In Fearington v. Blackwell-Durham Co., 141 N. C. 80, 53 S. E. 662, a freight elevator, not under operation by the plaintiff employé, suddenly dropped, without any assignable reason. It was held that under the doctrine of res ipsa loquitur there was evidence to be considered by the jury as to the negligent and defective condition of the elevator, and a negligent breach of duty on the part of the defendant. In Samuels v. McKesson (Sup.) 99 N. Y. Supp. 294, after an elevator, which was being run by an employé other than the plaintiff, had risen a few feet, the bottom of it was torn out. There was evidence that it was in the habit of shaking, tilting, and jerking, as though the sides of the bottom caught. It was held that such facts were sufficient to justify an inference of negligence under the doctrine of res ipsa loquitur. See, also, Wabash Screen Door Co. v. Black, 126 Fed. 721, 725, 61 C. C. A. 639.

The proposition is fully supported, both by reason and authority, that where the character of an accident and the circumstances under which it occurs are such as to point strongly to a condition which is abnormal and dangerous, and to a long-continued existence of such abnormal and dangerous condition, under circumstances indicating that the employer by the exercise of reasonable care should have known of such condition, and where the evidence shows that the employé had no knowledge of such condition, and suffered injury through no negligence of his own and through no risk assumed by him, and that such abnormal and dangerous condition was the proximate cause of the accident, the fact of the relation of employer and employé does not forbid an inference of the employer’s negligence from the fact of the accident under circumstances so stated; notwithstanding the absence of direct testimony, by personal observation, of the existence of the specific defect alleged to have caused the accident. This proposition is entirely consistent with the proposition applied upon the former review of this case, and is in no way in conflict with the proposition that inference of negligence depending upon mere conjecture will not be permitted, nor witli the proposition that the court will not permit negligence to be shown by testimony of an incredible situation.

We are constrained to hold that the evidence presented upon the second trial was such as, if believed, to justify an inference that the sudden rising of the elevator was due to a defective valve, and that such defect was or should have been known to- defendant by ordinary care in inspection, and thus to meet the burden of proof imposed upon the plaintiff.

Judgment reversed, and new trial ordered.