McGrath v. Texas & P. Ry. Co.

Fifth Circuit

McGrath v. Texas & P. Ry. Co.

60 F. 555, 9 C.C.A. 133, 1894 U.S. App. LEXIS 2116

CourtCourt of Appeals for the Fifth Circuit

DecidedJanuary 23, 1894

DocketNo. 181

StatusPublished

Cited by2 cases

This text of 60 F. 555 (McGrath v. Texas & P. Ry. Co.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McGrath v. Texas & P. Ry. Co., 60 F. 555, 9 C.C.A. 133, 1894 U.S. App. LEXIS 2116 (5th Cir. 1894).

Pincite

Opinion

TOULMIN, District Judge.

Tbe facts disclosed by tbe testimony are that the plaintiff was a car repairer in the car department of tbe defendant; that one White was tbe foreman of tbe car department, in which was included tbe wrecking department of tbe company. White bad authority to employ and discharge persons working in that department, and did employ- tbe plaintiff. There was a wreck on defendant’s road. White sent one Schmalz-reid and the plaintiff and others to tbe scene of tbe accident with a wrecking car, on which were a derrick and appliances with which to remove the wreck. Schmalzreid had charge of the wreck ing car and machinery while it was operated in removing the wreck, and while' in charge of the work was called the “wreck master,” and had experience as such. The wrecking car was placed on a bridge, at the place of the wreck, which the evidence tended to show was defective and insecure. It had been damaged at the time of the recent wreck, and had been but temporarily repaired. The evidence also tended to show that, while the wrecking car was provided with sufficient and suitable ropes to secure and keep the derrick on the car in position, they were not properly fastened or used at the time of the injury complained of. The plaintiff was working on the car, and participated in handling the ropes, and had been so working for. a day and a half before the injury occurred. The car and derrick toppled over, and he was severely injured. The evidence further tended to show that the injury resulted from Schmalzreid’s negligence in placing the car on the bridge to do the work, when it was unnecessary to do so, and in not properly fastening the ropes to secure and keep the derrick in position. The general charge of the court, to which the plaintiff excepted, and now assigns as error, was as follows:

“So far as the faulty construction of the bridge is objected to by plaintiff, it was obviously a new and temporary structure, the defects of which, so far as they may have contributed to the injury of plaintiff, were patent, and open to the eyes of the plaintiff. Under the evidence in this case, you are instructed that plaintiff cannot recover under his allegations of negligence on the part of Schmalzreid, the wrecking master. You will therefore find for the defendant.”

The plaintiff also requested several special charges, which were refused by the court, and to which plaintiff excepted.

We think the facts of this case bring it directly under the ruling [557]*557in the case of Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, and of the case of Railway Co. v. Rogers (decided by this court at the last term) 57 Fed. 378,¹ and that there is no error in the charge of the court, and therefore none in its refusal to charge as requested by the plaintiff. Judgment affirmed.

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TOULMIN, District Judge.

Tbe facts disclosed by tbe testimony are that the plaintiff was a car repairer in the car department of tbe defendant; that one White was tbe foreman of tbe car department, in which was included tbe wrecking department of tbe company. White bad authority to employ and discharge persons working in that department, and did employ- tbe plaintiff. There was a wreck on defendant’s road. White sent one Schmalz-reid and the plaintiff and others to tbe scene of tbe accident with a wrecking car, on which were a derrick and appliances with which to remove the wreck. Schmalzreid had charge of the wreck ing car and machinery while it was operated in removing the wreck, and while' in charge of the work was called the “wreck master,” and had experience as such. The wrecking car was placed on a bridge, at the place of the wreck, which the evidence tended to show was defective and insecure. It had been damaged at the time of the recent wreck, and had been but temporarily repaired. The evidence also tended to show that, while the wrecking car was provided with sufficient and suitable ropes to secure and keep the derrick on the car in position, they were not properly fastened or used at the time of the injury complained of. The plaintiff was working on the car, and participated in handling the ropes, and had been so working for. a day and a half before the injury occurred. The car and derrick toppled over, and he was severely injured. The evidence further tended to show that the injury resulted from Schmalzreid’s negligence in placing the car on the bridge to do the work, when it was unnecessary to do so, and in not properly fastening the ropes to secure and keep the derrick in position. The general charge of the court, to which the plaintiff excepted, and now assigns as error, was as follows:

“So far as the faulty construction of the bridge is objected to by plaintiff, it was obviously a new and temporary structure, the defects of which, so far as they may have contributed to the injury of plaintiff, were patent, and open to the eyes of the plaintiff. Under the evidence in this case, you are instructed that plaintiff cannot recover under his allegations of negligence on the part of Schmalzreid, the wrecking master. You will therefore find for the defendant.”

The plaintiff also requested several special charges, which were refused by the court, and to which plaintiff excepted.

We think the facts of this case bring it directly under the ruling [557]*557in the case of Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, and of the case of Railway Co. v. Rogers (decided by this court at the last term) 57 Fed. 378,¹ and that there is no error in the charge of the court, and therefore none in its refusal to charge as requested by the plaintiff. Judgment affirmed.

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Bluebook (online)

60 F. 555, 9 C.C.A. 133, 1894 U.S. App. LEXIS 2116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcgrath-v-texas-p-ry-co-ca5-1894.

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