Messrs. John F. Dillon, D. D. Duncan, and T. J. Freeman for plaintiff in error.
[196 U.S. 51, 53] Mr. Leigh Clark for defendant in error.
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. 59 C. C. A. 31, 122 Fed. 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 [196 U.S. 51, 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 6 feet, and was about 5 feet wide and 18 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:
The employee who built the scales testified as follows:
... * *
... * * [196 U.S. 51, 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.
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 box car to adjoining scale boxes varied from 16 inches to 168 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: [196 U.S. 51, 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.
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Plaintiff further testified:
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:
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?'
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 [196 U.S. 51, 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, planintiff 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:
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 2 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 [196 U.S. 51, 62] proof 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, 68 , 48 S., L. ed. 96, 100, 24 Sup. Ct. Rep. 24.
The remaining assignment of error questions the correctness of the following portion of the charge to the jury:
The grounds of the objection to the charge being thus stated:
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. [196 U.S. 51, 64] We find no error in the judgment of the Circuit Court of Appeals, and it is affirmed.