An employee is entitled to assume that his employer has used due
care to provide reasonably safe appliances for the doing of his
work. Knowledge of the increased hazard resulting from the
negligent location in dangerous proximity to a railroad track of a
structure will not be imputed to an employee, using ordinary
diligence to avoid it if properly located, because he was aware of
its existence and general location. It is for the jury to determine
from all the evidence whether he had actual knowledge of the
danger.
The facts are stated in the opinion.
Page 196 U. S. 53
MR. JUSTICE WHITE delivered the opinion of the Court.
This suit was commenced in a state court by W. W. Swearingen,
the defendant in error, and, on the application of the defendant,
the Texas & Pacific Railway Company, was removed to the circuit
court of the United States as one arising under the laws of the
United States because the railway company was chartered under an
act of Congress.
The action was to recover damages for personal injuries
sustained by reason of the alleged negligence of the defendant
company, in whose service at the time of the injury the plaintiff
was employed as a switchman. The negligence alleged on the part of
the company was the existence, in close proximity to a switch
track, of a scale box, by striking against which the plaintiff was
injured whilst doing duty as a switchman. In addition to a general
denial, the railway company specially pleaded that the scale box in
question was at a safe distance from the track on which the
plaintiff was hurt when working, and, moreover, that the plaintiff
had assumed the risk, if any, arising from the situation of the
scale box, and had, in any event, been guilty of contributory
negligence. There was a verdict and judgment for the plaintiff, and
an affirmance of such judgment by the court of appeals. 122 F.
193.
The assignments of error are based first on a ruling of the
trial court in rejecting evidence; second, on the refusal to direct
a verdict; and, third, on an exception taken to the charge
Page 196 U. S. 54
given to the jury. To pass upon them requires an appreciation of
the proof, and therefore, before coming to consider the
assignments, we summarize the testimony.
The accident occurred after dark on the evening of February 7,
1902, in the switch yards at El Paso. It was shown that in that
yard there were several tracks. One track, No. 1, ran over the bed
of the scales in question. On the right of this scale there was
what was called a scale box, which rose to about the height of six
feet, and was about five feet wide and eighteen inches deep. On the
other side of this structure there was a track described as track
No. 2, and beyond this, to the right, were two other tracks, known
respectively as track No. 3 and track No. 4. The space between a
ladder on the side of a freight car when moving on track No. 2 and
the scale box in question was shown by the evidence to be only 19
1/2 inches.
The plaintiff testified concerning the accident as follows:
"I was hurt on the evening of the 7th of February, 1902, while
working as a switchman after dark at about 6 o'clock and 45
minutes."
"I was a day switchman, but we worked until after dark."
"My duties as a switchman was to assist in the moving, placing,
and switching of cars, coupling and uncoupling them, and making up
trains, and generally to obey the order of Yardmaster Moore, under
whom we were working, and my duties also required me to ride on the
cars while they were being moved."
"On this night, we were making up a transfer to take to the
Southern Pacific Railway, and the cars we had to get were on No. 2
track. My station was with the engine, called 'following the
engine.' I worked up near the engine."
"The engine was at the west end of the yards, west of track No.
2, with me with it, and it backed down east into No. 2 track, with
me riding on the footboard at the east end of the engine, to get
these cars, and we passed the scale box, although I did not see it,
and reaching the cars, I coupled the engine to them, and not
getting a signal from the yardmaster, who was still
Page 196 U. S. 55
farther east of me, as was also the other switchman, Williams, I
walked east down the string of cars about two car lengths, and,
getting the signal, I passed the same to the engineer, and the
engine and cars started up again going west so as to go out on
another track, and as the cars started, I got up on a boxcar to
ride down past the switch at the west end of track No. 2, so as to
throw the switch and let the train on another track."
"There is a ladder on the side of a boxcar, and a step called a
stirrup under the ladder under the bottom of the car, and I was
holding on to the ladder with my hands [illustrating by holding his
hands above his head, as if climbing a ladder], and my lantern was
hanging on my right arm, and I was looking back east for a signal
from the yardmaster, as it is my duty to do, I do not know whether
he wanted to give one or not, but it is my duty to be on the
lookout, although I do not have to look in his direction all the
time, when my right shoulder struck the scale box, and I fell down
between the scale box and the cars, and I was dragged and badly
injured. We had probably eight or ten cars at the time, and I was
riding properly and hanging out a little from the car, which is
proper, and I was on the north side of the car, which is also
proper, so as to signal the engineer."
The employee who built the scales testified as follows:
"It is my business to know how much a car passing on a side
track will clear the scale box, and these tracks at this place are
standard gauge apart, and the scale box is standard, and as I had
to put the scale box there to facilitate business and for
convenience, I had no more room because the lever of the scale is a
certain length to get the fulcrum. The tracks are standard, and are
not further apart because there is no more room to put them farther
apart."
"
* * * *"
"The distance that I put this scale box from track No. 2 is
standard, and is considered a safe and proper distance in putting
in scales where the tracks are standard gauge apart."
"
* * * *"
Page 196 U. S. 56
"I am bound to put my scales in according to the length of the
lever, and if tracks are already there and are standard distance
apart, I have a uniform and standard distance from the tracks."
"We have side tracks at most places on each side of the scales.
The tracks in this yard are standard gauge apart, and where ground
is scarce we have to economize in space; but where ground is
plenty, the tracks can be further apart."
The evidence for the company also showed that the scales in
question had been erected a number of years prior to the happening
of the accident and after tracks Nos. 1 and 2 were built. The
superintendent of terminals of the defendant company testified that
"south of track No. 4 there is a space left for four or five more
tracks." The same witness also stated that the customary position
of a switchman while riding on a car and ladder "is to swing out
from the car with his body," and that "a well developed man cannot
safely pass by the scale box on track No. 2, while riding on a side
of a car on the ladder, if he hangs out from the car."
There was evidence that at other yards than the one in question,
the distances from the side of a standard boxcar to adjoining scale
boxes varied from sixteen inches to one hundred sixty-eight
inches.
Testimony was introduced tending to show that the plaintiff,
before he was hurt, knew of the proximity of the scale box to track
No. 2. Concerning his employment and knowledge of the location of
the scales, plaintiff testified that he had made one trip as extra
brakeman in the service of the railway company in January, 1900;
that in December, 1901, as brakeman, he made about one trip between
El Paso and Toyah; that he had worked in the El Paso yards as extra
switchman two nights and three days in January, 1902, and went to
work there regularly as switchman on February 1, 1902. He denied
any recollection of ever having worked on track No. 2 during his
employment in January, 1902, and, referring to his employment in
the early days of February, 1902, plaintiff says:
Page 196 U. S. 57
"During the seven days I worked for defendant, we never used
this No. 2 track at the west end, or near the scales, and I never
saw a car on track No. 2, opposite the scales, and never had my
attention called to the distance between the track and scale box. I
never measured or approximated the distance to it. Nothing ever
occurred to attract my attention to it."
"
* * * *"
"I knew we had to pass the scale box at the time I was hurt, so
as to get to the switch beyond, but I was not thinking about it,
and I did not see it when we passed it going in after these
cars."
"The switch engine had a headlight lighted at both ends, and I
was on the footboard at the rear of the engine, which put me in
front while we were backing into track No. 2 after the cars, but
the headlights were not very clean or bright."
"There was nothing to hide the scale box from my view; it was
perfectly open and apparent."
Plaintiff further testified:
"I knew the location of the scale before I was hurt. I knew it
was between tracks Nos. 1 and 2, but I did not know anything with
reference to its proximity to track No. 2, and did not know it was
dangerously close to track No. 2."
"At the time I was hurt, I had no knowledge of the distance
between the scale box and No. 2 track."
"I set cars on the scale on track No. 1 to be weighed, but I
would be on the north side of the cars on track No. 1, and as the
scale box is on the south side, I could not see it. I had nothing
to do with the scale box, and had no business around it."
"I first learned the exact distance between the scale box and
the nearest rail of track No. 2 a few days ago, when I went down
and measured it at your (referring to plaintiff's attorney)
recommendation."
"I was never warned about the danger of getting knocked off of
cars by this scale box, and at the time I was hurt, I
Page 196 U. S. 58
was attending to my work, and thinking about my duties, and
looking for a signal from the yardmaster, and was not thinking
about the box. I did not see it immediately prior to the time I
struck it."
"The scale box was at the same place, when I struck it, as it
was when I first went to work for defendant."
The evidence was closed by the offer on behalf of the company of
portions of a written application by plaintiff for employment as
brakeman, dated February 22, 1900. After stating that the plaintiff
identified the application, the bill of exceptions recites as
follows:
"Defendant then offered in evidence the following portions of
said application, consisting of questions and the answers thereto
written by the plaintiff, for the purpose of showing that plaintiff
had notice of the location of said track scale box, and that he was
in danger of being knocked off of a car when passing the same:"
"Q. Do you make this application for employment in train
service, realizing the hazardous nature of such employment,
understanding that it is necessary in operating this railway for
the company to have overhead and truss bridges at certain points on
the line; also coal chutes, track scale boxes, water tanks, coal
houses, platforms, sheds, roofs, and other overhead and side
structures, and that, in performance of the duties for which you
are employed, you are liable to receive injuries by being knocked
off the side or top of cars unless you use due care to avoid injury
thereby?"
"A. Yes."
"Q. Do you agree to acquaint yourself with the location of all
overhead and truss bridges, as well as the location of all other
structures along the line of the road?"
"A. Yes."
"Q. Do you understand that no officer or employee of this
company is authorized to request or require you to use defective
tracks, cars, machinery, or appliances of any kind, and that, when
you do so, you assume all risk of injury therefrom? "
Page 196 U. S. 59
"A. Yes."
"Q. Do you understand that this company desires to employ only
experienced men in the service, and does not undertake to educate
inexperienced men?"
"A. Yes."
"Counsel for plaintiff objected to the said testimony for the
reason that it was irrelevant and immaterial, and that plaintiff
had made this application and entered the employ of defendant, and
afterwards resigned, and again entered the employ of the defendant
some two years later, without making another application, and also
because it was an effort on the part of defendant to limit its
liability for its own negligence, and void as against public
policy, and because the particular location of this track scale box
is not given, and the court having sustained plaintiff's
objections, and excluded said testimony, the defendant then and
there excepted to the action of the court in excluding said
evidence, and tenders this, its bill of exceptions, which is
allowed, signed, and sealed by the court."
The first assignment of error assails the affirmance by the
court of appeals of the action of the trial court in refusing to
receive in evidence the matter just referred to.
These excerpts were offered in evidence, as stated in the bill
of exceptions,
"for the purpose of showing that plaintiff had notice of the
location of said track scale box, and that he was in danger of
being knocked off a car when passing the same."
The application was made in February, 1900, and was for
employment not as switchman, but as brakeman. The employment of the
plaintiff with the defendant company following the application was
in December, 1901, when the plaintiff, as a brakeman, made about a
dozen trips between El Paso and a place called Toyah. His
subsequent employment as switchman commenced but a short time
before the happening, in February, 1902, of the accident complained
of.
We think the trial court rightly excluded the offered evidence.
In the first place, the plaintiff had testified that,
Page 196 U. S. 60
before the accident, he had knowledge of the existence of the
scale box. In the next place, while undoubtedly the statements in
the application tended to show that the plaintiff was aware of the
generally hazardous nature of the employment, and necessity of the
exercise of care in working with and about the instrumentalities
employed by the company in the operation of its railroad, the
recognition of these facts by the plaintiff, and his agreement to
acquaint himself with the location of bridges and other structures
on the line of the road, did not tend to establish notice,
communicated to the plaintiff, that the defendant company had not
exercised due care in placing scales or scale boxes on its tracks,
or that the company had, by its negligence, increased the ordinary
hazards to be expected from the use of such structures, and that,
by the exercise of ordinary care on his part, plaintiff could not
escape injury. The evidence was therefore immaterial in the light
of the issue upon which the jury had to pass.
At the close of all the evidence, the defendant company
requested the court to charge the jury to return a verdict for the
defendant, and to the overruling of such motion the defendant
company duly excepted. The second assignment alleges error in the
affirmance by the court of appeals of the action of the trial court
denying this motion.
The right to have the jury instructed to find for the company
was based upon the following contention:
"
a. Because the undisputed evidence established that
said track scale box was erected in the defendant's yard, and,
under the circumstances, in a reasonably safe place, and at a
reasonably safe distance and location from track No. 2, on which
track plaintiff was riding at the time he was injured."
"
b. Because plaintiff testified he knew of the location
of the track scale box and the location of track No. 2 with
reference to said track scale box, on which track No. 2 he was
riding at the time he was hurt, and because the undisputed evidence
shows that the track scale box and the danger of the same was open
and obvious to the view of plaintiff, and that neither
Page 196 U. S. 61
the track scale box nor the dangers thereof were hidden or
latent, and plaintiff was presumed to know the danger, and assumed
the risks thereof."
"
c. Because the uncontroverted testimony established
the fact that plaintiff knew of the location of the track scale
box, and location of said track No. 2 with reference to said track
scale box, on which track he was riding at the time he was hurt,
and that the track scale box and the dangers of the same were open
and obvious to the view of plaintiff, and not hidden or latent, and
plaintiff was presumed to know the danger, and assumed the
risk."
The motion was properly overruled. So far from it being the
fact, as asserted, that the evidence established indisputably the
existence of the grounds upon which the motion was based, the
record shows that there was evidence tending to establish that the
track scale box was not erected in a reasonably safe place, and
that, although the plaintiff knew that the scale box was situated
adjacent to track No. 2, he did not know that it was so near that
it could not be passed, in the performance of his duties as a
switchman, without danger. This is apparent when it is borne in
mind that the plaintiff testified in substance that, prior to the
accident, he had not closely inspected the scale box or taken
measurements of the distance from the box to the north rail of
track No. 2, and that he did not do more than cursorily observe the
structure from a distance, and that he was unaware of the nearness
of the scale box to the north rail of track No. 2.
Prima facie, the location of scales where the tracks
were only the standard distance apart, and where a space of less
than two feet was left for the movements of a switchman between the
side of a freight car and the scale box, encumbered, as he would be
in the nighttime, with a lantern employed for the purpose of
signaling, did not incontestably establish the performance by the
defendant company of the duty imposed upon it to use due care to
provide a reasonably safe place for the use of the switchmen in its
employ. And, so far from the
Page 196 U. S. 62
proof's making it certain that the necessity of the situation
required the erection of the structure between tracks Nos. 1 and 2
as existing, there was proof that the railway company owned
unoccupied ground, intended for other tracks, to the south of track
No. 4, justifying the inference that the distance between tracks
Nos. 1 and 2 might have been increased, and the employment of the
scales thus rendered less hazardous to switchmen, or that the
scales might have been removed to a safer location.
It was therefore properly a question for the determination of
the jury whether or not the scales were maintained in a reasonably
safe place, and if not, whether the plaintiff had notice thereof.
The court of appeals was of opinion, and rightly, we think, that
the dangerous contiguity of the scale box to track No. 2, and the
extra hazard to switchmen resulting therefrom, was not so open and
obvious on other than a close inspection as to justify taking from
the jury the determination of the question whether there had been
an assumption of the risk. The plaintiff was entitled to assume
that the defendant company had used due care to provide a
reasonably safe place for the doing by him of the work for which he
had been employed, and as the fact that the defendant company might
not have performed such duty in respect to the scale box in
question was not so patent as to be readily observable, the court
could not declare, in view of the testimony of the plaintiff as to
his actual want of knowledge of the danger, that he had assumed the
hazard incident to the actual situation.
Choctaw, O. & G.
R. Co. v. McDade, 191 U. S. 64,
191 U. S.
68.
The remaining assignment of error questions the correctness of
the following portion of the charge to the jury:
"The defendant claims that the plaintiff knew of the existence
and location of the scale box with which he came in contact, and
that, by continuing in the work, with such knowledge, he assumed
all risks incident to and arising out of his employment. Upon this
point, you are instructed that, if you believe
Page 196 U. S. 63
from the testimony that, prior to the plaintiff's injuries, he
knew of the existence and location of the scale box, and of the
danger incident to the discharge of his duties while passing the
same on a moving train, if danger there was; or if, knowing of the
location of the structure, the danger to the employees while in the
usual discharge of their duties was apparent -- that is, open to
observation -- then you are instructed that the plaintiff, by
continuing in the employment of the defendant without complaint,
assumed such risks, and he would not therefore be entitled to
recover. In this connection, you are further instructed that the
mere fact that the plaintiff knew of the existence and location of
the scale box would not, as a matter of law, charge him with
knowledge of the danger, if such danger there was, due to its
proximity to the north rail of track No. 2, and whether he knew of
the danger is a question of fact for you to determine from a
consideration of all the facts and circumstances in evidence."
The grounds of the objection to the charge being thus
stated:
"Because the proof showed that plaintiff knew of the location of
the track scale box, and of track No. 2, on which he was riding at
the time he was hurt, in reference to a scale box, and that the
same and the location thereof was open and obvious to plaintiff's
view, and, being an experienced brakeman, he was charged with
notice that riding on the cars as he did was dangerous, and he
assumed the risks thereof, and the court should have so charged the
jury."
This assignment but reiterates contentions made in connection
with the assignment based on the alleged error in overruling the
motion for judgment. As we have already decided that knowledge of
the increased hazard resulting from the dangerous proximity of the
scale box to the north rail of track No. 2 could not be imputed to
the plaintiff simply because he was aware of the existence and
general location of the scale box, it was for the jury to
determine, from a consideration of all the facts and circumstances
in evidence, whether plaintiff had actual knowledge of the
danger.
Page 196 U. S. 64
We find no error in the judgment of the circuit court of
appeals, and it is
Affirmed.