Fentress Coal & Coke Co. v. Elmore

240 F. 328, 153 C.C.A. 254, 1917 U.S. App. LEXIS 2358

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 16, 1917
• Docket: No. 2873
• Status: Published

Opinions

DENISON, Circuit Judge.

In the court below Elmore recovered a judgment for personal injuries received while employed in defendant’s mine. The case comes here upon the claims that there was nothing tending to show defendant’s proximate negligence and that contributory negligence conclusively appeared.

The record indicates that the case came into the court below through removal from the state court, but the removal proceedings are not includi d n the transcript, and the transcript as filed in this court does not sh jv federal jurisdiction. Since less, than the whole record is here, a ic since all parties have assumed — and still do — that there was jurisdi' ¡ti n, we feel justified in concluding that the omitted proceed-i iently disclosed a diverse citizenship. mgs si

[1 ;stion of negligence arises in this way: Elmore was doing, l( once to mine cars, the work done by brakemen and switch-o a surface road. The mine cars were small and short, and t )led together by a hook on one of them engaging with an li k, carried by a chain, on the other. Two styles of hooks e: The later style, intended for the newer and heavier type The with r< men U] were c eye or were ii of can older s use) w ras heavy and strong and made of cast iron or steel; the y ; (in process of being supplanted, but still in considerable s >f wrought iron, and of much lighter construction. In this style tí ¡ ¡ ormal hook was strong enough, and was sufficiently recurved, so that it would hold the link upon the hook in the exigencies of use; but as ¡h hook became worn and weaker it tended, in use, to puli out str Lij ater, so as to have merely a single, right-angled bend, in which ( p: dition it was unsafe, because so easily disengaged from the link by ¡:1 : shocks 'it naturally received.

Whil Umore was lawfully riding on the tenth car of a train of such m i lg cars, which was coasting downgrade in the mine, the car on whii h he was riding became uncoupled from the one ahead, and the cut o nine cars ahead ran on uncontrolled; the last one of the cut was c ¡railed, his car ran into it, and he was thrown off and hurt. Plaintif theory of negligence is that the uncoupling happened 'because tl e look was worn and straightened.

[ 1 ] i : s first urged that a defective hook could not have caused the injury 1 e ;in, because the uncoupling of the hook and link on the rear of the it h car would have no tendency to derail that car.- This would seem to t true on an ordinary train, but not so as to a train of very short c; n running away downhill, on a rough track. In such a situation tl : ear car, deprived of the steadying influence of a coupled-up followii g car, would be distinctly likely to be snapped off the track, like the ; icker of a whip. It cannot be denied that it was within the provine f the jury to find that the uncoupling, if it occurred, was the pro :i late cause of the derailment.

[2] 1 . 5 next said that there is no evidence sufficiently tending to show tl a. the uncoupling happened because of a defective hook, or that thi articular hook was defective. There is no' direct testimony to this :: ect; so the question is whether all the facts and circumstances r ¡ enough to justify a jury in concluding, as this jury did, that thi : ook was defective. When these facts and circumstances are collated : is seen that the defendant was customarily using these hooks, ■ rl .ch customarily became defective; that the cars of this type were cc a nually being sent to the repair shop to' have the hooks repaired n , rebent; that one of these hooks, so straightened that its use' in • a. ; form was conceded to be negligent, was found upon one of the ( a: » two or three days after the accident; that shortly before the acci k it an employé represented to the superintendent that a group of these cars had their hooks in such condition that they ought to go to the shop for repairs, and that the superintendent gave instructions to use them a few trips more before so doing; and that no other reasonably probable cause for the uncoupling is suggested by the record. Taking all these things together, we think they furnish legal justification for a finding of the jury that the hook on this car was sufficiently defective, and had been so long enough, to have raised on the part of defendant the duty of such repair as was necessary to make it safe. We classify this case with our previous holdings in such cases as Felton v. Newport, 105 Fed. 332, 44 C. C. A. 530, and Pittsburgh Co. v. Scherer, 205 Fed. 356, 123 C. C. A. 484, rather than with such cases as Smith v. I. C. R. R., 200 Fed. 553, 119 C. C. A. 33, and Richards v. Mulford, 236 Fed. 677, —C. C. A.-.

[3] There remains the question of contributory negligence, which in Tennessee is still a bar to recovery by plaintiff.

It is said that Elmore’s duties were such that upon him rested the primary duty of inspection, that the company would know of the unsafe condition of such hooks only through reports made by Elmore, and that his negligence in not reporting the defect, but in continuing to use the car, directly contributed to the result. On the other hand, it is said that he had no duty of inspection to such an extent as to supplant the employer’s primary duty, and that his whole work with the mine cars was underground and in the dark, so that he would not naturally have discovered this defective hook, but would have learned of it only by chance. In this connection a controversy has arisen whether Elmore’s work was or was not wholly underground, and. whether, when he says that he gathered these cars together and helped make up this train “about two miles from the mouth of the mine,” he means two miles inside the mouth or two miles outside the mouth. On this subject the record brought to this court is uncertain and confusing: The question of contributory negligence was submitted to the jury under a charge to which neither party excepted. We have examined the record with special reference to this phase of the case; and when we give due effect to the fact that the superintendent in authority over Elmore regarded the cars which were in bad condition in this respect as still safe for further use, and to the uncertainty as to what knowledge Elmore would naturally have acquired, and pay respect to the rule that the burden is on defendant to establish this defense, we cannot say that his negligence in continuing to work around and with this car conclusively appears. Tennessee Co. v. Gaddy (C. C. A. 6) 207 Fed. 297, 299, 125 C. C. A. 41.

It follows that the judgment must be-affirmed.