June 4, 1953 —
July 3, 1953.
APPEAL from a judgment of the municipal court of Brown county, circuit court branch: RAYMOND J. RAHR, Judge. Affirmed.
For the appellant there was a brief by Welsh, Trowbridge, Wilmer Bills of Green Bay, and oral argument by Fred N. Trowbridge.
For the respondent there was a brief by Cohen, Parins Cherney of Green Bay, and oral argument by Colburn G. Cherney.
Action for damages for personal injuries. Verdict and judgment for plaintiff, and defendant appeals.
Plaintiff is employed as a laborer in the yard of defendant. Defendant is a railroad engaged in interstate commerce. Both parties are subject to the Federal Employers' Liability Act and particularly 45 USCA, Railroads, sec. 51, ch. 2 thereof which, in its material part, provides:
"Every common carrier by railroad while engaging in commerce between any of the several states or territories, . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, . . . for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."
There is no dispute in the facts.
At the time plaintiff was injured he was engaged in loading railroad ties onto a truck in defendant's railroad yard. The ties were piled in a solid stack, one row of ties running east and west, surmounted by a row pointing north and south, with still higher rows alternating in like manner until a pile ten or twelve feet high was constructed. The ties were stored in this way until the time came to use them. That time had arrived and it was plaintiff's job to get on top of the pile and attach a chain to successive ties in the top row so that a crane could lift each tie and place it on the truck. No ladder or other separate appliance was provided for plaintiff's use to get to the top of the pile but the ties were piled in such a way that every second row was offset enough to give hand and footholds to a person climbing directly up the side of the stack. Plaintiff was expected to climb to the top in this manner and in fact had done so on other piles earlier in the day. He climbed this particular pile safely until he grasped the ties lying in the top row. As he put his weight on them to haul himself up they slid toward him. To avoid falling while still holding the ties, plaintiff jumped backward and fell onto a three-foot stack of ties below him, and the ties which he had grasped fell after him, breaking his leg.
The court submitted the case to a jury which answered questions of a special verdict as follows:
"First Question: Was the defendant, Green Bay Western Railroad Company, negligent with respect to furnishing a reasonably safe means to the plaintiff of ascending the pile of ties in question?
"Second Question: If you answer the first question `Yes,' then answer this question: Was such negligence upon the part of the defendant, Green Bay Western Railroad Company, a cause of the plaintiff's injuries?
"Third Question: Was the plaintiff, Melvin De Keuster, negligent with respect to his own safety?
Defendant's appeal assigns as error the trial court's refusal to grant a nonsuit or direct a verdict in defendant's favor, or to change the answers of the verdict and give judgment dismissing the complaint.
Under the Federal Employers' Liability Act it is a railroad's duty to furnish a reasonably safe place for its employee to work and reasonably safe tools and appliances with which to work. This duty is not an absolute one but the railroad must exercise reasonable care to that end. Baltimore Ohio S.W. R. Co. v. Carroll (1930), 280 U.S. 491, 50 Sup. Ct. 182, 74 L.Ed. 566. The employee has the burden of proving the negligence of the employer.
Defendant summarizes its argument here as follows:
"The defendant furnished the plaintiff with an appliance to climb atop the stack of ties — the natural ladder or steps formed by the construction of the stack of ties. No proof was offered by the plaintiff: (1) That a ladder or other climbing device would have been safer or practical to use; (2) that the appliance furnished was not reasonably safe; or (3) that it was customary to use a ladder or other climbing device for this purpose."
From this, it submits that the jury's answer to question One of the verdict is without support.
Defendant's identification of the pile of ties as an appliance furnished plaintiff by the employer is an unfortunate one, for if it is an appliance, a natural ladder, it is clearly defective. Its top rung came away under plaintiff's hand, causing him to fall to the ground. The behavior of this appliance when put to use is ample evidence to sustain a finding that it was not reasonably safe for the purpose which defendant says it was designed and furnished for. The failure of such ladder to bear plaintiff's weight, and defendant's charge that the jury relied not on evidence but on conjecture, make appropriate a repetition of the words of the court in Chicago, M. St. P. R. Co. v. Moore (8th Cir. 1909), 166 Fed. 663, 666, 23 L.R.A. (N.S.) 962, as follows:
"Of course, jurors are not restricted to a consideration of the facts directly proven, but may give effect to such inferences as reasonably may be drawn from them. Nor are they expected to lay aside matters of common knowledge or their own observation and experience of the affairs of life, but, on the contrary, to apply them to the evidence or facts in hand, to the end that their action may be intelligent and their conclusions correct."
This so-called ladder collapsed while in use. The jury's common knowledge applied to that fact led inevitably to the conclusion that this device for climbing was defective.
Defendant also argues that in order to establish defendant's liability plaintiff must show that defendant, in requiring him to climb piles without the aid of real ladders, departed from custom. The authorities do not demand evidence of custom. Referring again to the opinion in Chicago, M. St. P. R. Co. v. Moore, supra, we find, at page 668:
"Without question, it would have been permissible to show what pins were used by other owners and operators of like derricks, for that would have been some evidence of what could have been, and ought to have been, done by the defendant; but evidence of that character was not indispensable, because the ultimate and controlling test of the exercise of reasonable care is, not what has been the practice of others in like situations, but what a reasonably prudent person would ordinarily have done in such a situation. The law is not so unreasonable as to afford no test where there has been no practice by others with which the conduct in question can be compared; nor does it permit common sense and reason to lose their sway because, through ignorance, inattention, or selfishness, an unreasonable practice has prevailed."
In Baltimore Ohio R. Co. v. Whitacre (1915), 124 Md. 411, 92 A. 1060 (affirmed 242 U.S. 169, 37 Sup. Ct. 33, 61 L.Ed. 228), the railroad asked an instruction that if the unguarded ashpit into which plaintiff fell was like those of other railroads the jury could not find negligence in its construction. On appeal it was held the instruction was correctly refused. The appellate court said (p. 432):
"The [trial] court was not concerned with the question whether other railroads were or were not negligent in their appliances, but whether the Baltimore Ohio was, and the mere fact that the mode of construction followed that done by another company, and which may or may not have been a safe and proper appliance, could form no basis to relieve the Baltimore Ohio Company from liability in case the jury found negligence in the construction and maintenance of this pit."
As long ago as in Hosic v. Chicago, R. I. P. R. Co. (1888), 75 Iowa, 683, 685, 37 N.W. 963, a jury found that the failure of the railroad to put footboards over its open freight cars constituted negligence. On appeal it was held that ". . . the fact that such negligence was usual or customary would not relieve defendant from liability for its consequences."
We are not convinced that the construction of this pile of ties made the pile an appliance for going to the top of it. It seems to us, rather, that the pile constituted a place of work which, in the absence of some additional equipment for getting upon it, was not reasonably safe; and defendant's failure to supply such equipment was a negligent insufficiency in defendant's works and appliances, in violation of the provisions of the act. However, as defendant chose the theory that the pile was a self-contained climbing device and as the result could be no different if it is considered a place of work, we adopt defendant's theory for the purposes of this opinion. As a device or appliance the physical facts supply the evidence to take the question of its sufficiency to the jury and to sustain its answer that the defendant failed to furnish a reasonably safe means for plaintiff's ascent of the pile of ties.
By the Court. — Judgment affirmed.