Tillian v. Atchison, T. & S. F. Ry. Co.

1. We are satisfied that the question of negligence was one for the jury. Illinois Central R. Co. v. Porter, 207 F. 311, 315 (C.C.A. 5th Ct.). It was contended in that case the question of negligence should have been taken from the jury. There was testimony, as here, tending to prove the work was done in the usual and ordinary manner, but the court said: "Evidence that the work was being done at the time in question `in the usual and ordinary way' was not evidence that negligent conduct such as charged in this case was the usual and ordinary method of doing the business. The natural inference would be that such negligence of a fellow trucker was outside the usual and expected. The risk of such negligence was not, in our opinion, assumed by decedent, and this without reference to any construction of the Employers' Liability Act. The defendant's requests based upon the theory of such assumption of risk were, we think, properly refused, as not supported by a proper construction of the testimony in that respect."

2. The only other matter necessary to review is whether the appellant assumed the risk of his injury. The federal courts have definitely fixed rules for determining this question. It has been many times before the Supreme Court of the United States and the rules laid down in Chesapeake O.R. Co. v. De Atley,241 U.S. 310, 36 S. Ct. 564, 566, 60 L. Ed. 1016, have been consistently cited as the settled law in subsequent decisions. We quote from this case as follows: "According to our decisions, the settled rule is not that it is the duty of an employee to exercise care to discover extraordinary dangers that may arise from the negligence of the employer or of those for whose conduct the employer is responsible, but that the employee may assume that the employer or his agents have exercised proper care with respect to his safety until notified to the contrary, unless the want of care and the danger arising from it are so obvious that an ordinarily careful person, under the circumstances, would observe and appreciate them."

Also see the following authorities: 2 Roberts Federal Liabilities of Carriers (2d Ed.) § 833; Chicago, R.I. P.R. Co. v. Ward, 252 U.S. 18, 40 S. Ct. 275, 64 L. Ed. 430; Erie R. Co. v. Purucker, Adm'x, 244 U.S. 320, 37 S. Ct. 629, 61 L. Ed. 1166.

"In Southern Ry. Co. v. Gadd [C.C.A.] 207 F. 277 (decided May 6, 1913), we held that even at common law the employee did not assume the risk of the employer's negligence from an unusual and unexpected method of operation; that is to say, not incidental to the ordinary method. Evidence that the work was being done at the time in question `in the usual and ordinary way' was not evidence that negligent conduct such as charged in this case was the usual and ordinary method of doing the business. The natural inference would be that such negligence of a fellow trucker was outside the usual and expected. The risk of such negligence was not, in our opinion, assumed by decedent, and this without reference to any construction of the Employers' Liability Act. The defendant's requests based upon the theory of such assumption of risk were, we think, properly refused, as not supported by a proper construction of the testimony in that respect." Illinois Cent. R. Co. v. Porter (C.C.A.) 207 F. 311, 315; Seaboard Air Lines Ry. v. Horton, 233 U.S. 492, 34 S. Ct. 635, 58 L. Ed. 1062, L.R.A. 1915C, 1, Ann.Cas. 1915B, 475.

"It is contended that the state court erred in permitting a recovery under the Federal statute for the reason that the injury resulted from Skaggs' own act, or from an act in which he participated. The company, it is said, `cannot be negligent to an employee whose failure of duty and neglect produced the dangerous condition.' It may be taken for granted that the statute does not contemplate a recovery by an employee for the consequences of action exclusively his own; that is, where his injury does not result in whole or in part from the negligence of any of the officers, agents, or employees of the employing carrier, or by reason of any defect or insufficiency, due to its negligence, in its property or equipment. April 22, 1908, 35 St. 65. But, on the other hand, it cannot be said that there can be no recovery simply because the injured employee participated in the act which caused the injury. The inquiry must be whether there is neglect on the part of the employing carrier, and, if the injury to one employee resulted `in whole or in part' from the negligence of any of its other employees, it is liable under the express terms of the act. That is, the statute abolished the fellow-servant rule. If the injury was due to the neglect of a co-employee in the performance of his duty, that neglect must be attributed to the employer; and if the injured employee was himself guilty of negligence contributing to the injury, the statute expressly provides that it `shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.'" Illinois Cent. R. Co. v. Skaggs, 240 U.S. 66, 36 S. Ct. 249, 250, 60 L. Ed. 528.

The rule may therefore be stated to be: (1) If the injury was, in whole or in part, the result of the negligence of a servant of the employer, it is liable, notwithstanding the employee was himself guilty of contributory negligence. (2) In the latter case the damages shall be diminished by the jury in proportion to the amount of negligence attributable to the employee. (3) The employee need not exercise any care to discover dangers not ordinarily incident to his employment and may assume that his fellow servant is exercising proper care with respect to his safety. (4) All are subject to the condition, that if the want of care of the fellow employee and the resulting danger is so obvious that an ordinarily careful person, under the circumstances, would have observed the one and appreciated the other in time to have sought safety and thus prevented his injury, the result is attributable solely to his own negligence and he cannot recover.

Assuming then that the question of appellee's negligence was for the jury to decide, the case resolves itself into this: If there is substantial evidence from which a jury could properly find or infer that the appellant as an ordinarily careful person would not have observed the negligence of his fellow employee or have appreciated the danger in time to have avoided the injury, the question of the assumption of risk was for the jury.

With the law as above stated in mind, we will review the evidence on this question.

The evidence justifies the following facts: The shafting in question was placed on a truck with a flat top, having small flanges at each of the front corners which would have prevented the shafting from rolling off unless severe force was applied to it. The appellant had hold of the truck at the left corner in front, pulling, and saw his fellow employee put his hands on top of the shafting "Kinda holding them together." He did not know he was going to push on the shafting, but saw him when he did push. Taking the evidence of appellant and appellee together, there is nothing from which we can conclude as a matter of law that the danger was so obvious that a reasonable person under the circumstances would have observed the want of care and have appreciated the danger in time to escape injury. In fact, the reasonable deduction from the evidence is that immediately upon his fellow employee's pushing on the shafting it rolled off and injured appellant. At least the evidence was such that the jury would have been warranted in finding that appellant did not have time after discovering his fellow employee was pushing on the shafting to avoid the injury. We quote the following testimony (reduced to narrative form) of the only two witnesses who testified on this point:

Appellant's Testimony. "The flanges (at the front corners of the truck) would have prevented the shafting from rolling off. I had hold of the truck and was not touching the shafting. At the time they began to roll off I could see Charles Tomach pushing on the shafting. It was at this time or soon after that they started to roll. He had his hands on top of the shafting kinda holding them together and was in that position when the shafting began to roll. I was then facing Tomach and saw what he was doing. I did not tell him what to do. When we were ready to move I told him `let's go' and to push. I knew he had hold of the truck or shafting and told him to `let's go.' When I told him to push I did not know he was going to push on the shafting. They would not have rolled off unless a severe force had been applied to them." Testimony of Charles Tomach, Witness for Appellee. "The appellant was directing the movements of the truck. The iron started to roll and I jumped back and before I knew it this iron was on top of Frank, on his left foot. There was nothing to prevent the iron from rolling off the truck. I don't know whether the manner in which I pushed caused the steel to roll off the truck. I just grabbed hold of the iron and started to shove and the bars started to roll off. The floor in that place is a wooden, plank floor, full of knots and pretty rough. The appellant did not tell me to push, I just took for granted the stuff had to get moving. I worked around there long enough to know. I had one hand on one end of the bar and the other on top and without any notice from appellant or his saying anything I started to shove and the truck started to move. I had hold of the longest bar and in that position shoved off and that was when the bars tumbled."

Tomach also testified he pushed straight ahead, and not "sideways either way," but as he was standing at the side of the bars and "shoving," he would be a marvel of exactness if he was so precisely perfect in his "shoving," as not to vary to the right or the left. The jury might question his accuracy both in the perfection of his work and in remembering long after the precision with which it was done.

We are unable to say that appellant as an ordinarily careful and prudent man should have discovered his danger in time to have avoided the injury; that was for the jury to decide.

The case should have been submitted to the jury as decided in our original opinion, and the order therein made will be enforced.

SADLER, C.J., and HUDSPETH and ZINN, JJ., concur.

BICKLEY, J., dissents.