ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT
White, McKenna, Holmes, Day, Hughes, Van Devanter, Lamar, Pitney, McReynolds
MR. JUSTICE PITNEY delivered the opinion of the court.
Murphy, while in the employ of the Railway Company as a switchman in its yards at Marshall, Texas, fell from a
refrigerator car and received personal injuries, for which he recovered a judgment against the Company in the United States District Court, which was affirmed by the Circuit Court of Appeals, without opinion. According to plaintiff's theory, supported by evidence sufficient to sustain the verdict, the car was standing upon one of the unloading tracks, but in such a position that it required to be occasionally moved in the course of switching operations. It was partially loaded with bananas, and it had at one end an ice bunker with an opening or scuttle in the roof of the car through which the bunker was filled. The opening was surrounded with a casing or coaming, rising somewhat above the surface of the roof, and there was a hinged door or cover fitted to the opening and furnished with a ratchet device for raising it and setting it at any desired angle. Plaintiff went upon the top of the car at night in the course of his duties in order to test the brake and if necessary to set it, so that the refrigerator car could not run down upon the main track. While walking upon the roof of the car and making ready to descend, it being dark, and the signal lantern that he carried furnishing scanty light upon his path, he stepped upon the casing or coaming of the ice bunker, his foot slipped or turned, and he fell to the ground, receiving serious injuries. The hatch cover, it appeared, was on this occasion left wide open, instead of being set at an angle by means of the ratchet, which, according to the evidence, was the proper mode of arranging it when it was desired to ventilate the ice bunker, and would have had the effect of preventing plaintiff from stepping upon the coaming.
Plaintiff's contention was that the Railway Company was negligent in leaving the door of the ice bunker wide open. Defendant insisted that the car was in the charge and control of one Marshall, who was selling bananas from it, and that under the rules prescribed by the company for governing the transportation of bananas Marshall had
a right to have the doors of the ice bunker open or closed, as he preferred. The trial court was requested to charge that the rules of the company governing the transportation of bananas in refrigerator cars were reasonable and binding upon the parties, and if the car in question was handled in accordance with those rules, and if the messenger in charge of the car left the ventilators open, and this caused the plaintiff to fall, he could not recover. This request was refused, and the court charged, on the contrary, that the Railway Company could not escape liability for injuring plaintiff by reason of Marshall's act in leaving the bunker opening uncovered; that the mere fact that Marshall, or somebody acting for him, left it uncovered would not be sufficient to defeat a recovery by the plaintiff; but that the jury could take into consideration the fact of Marshall's control of the car in determining whether the defendant company, on the occasion in question, was guilty of negligence directly or proximately contributing to plaintiff's injury, and also in determining whether plaintiff was guilty of contributory negligence in walking along the car in the manner he did at the time of his injury. We think this was sufficiently favorable to defendant. So far as appears, there was nothing to show that plaintiff had notice of the company's rules respecting the care of perishable freight in refrigerator cars, or that they entered into the contract of employment. Assuming he was charged with notice of Marshall's control of the car and knew that this must interfere to some extent with the Railway Company's care for plaintiff's safety, this was no more than a circumstance in the case, and could not properly be treated as conclusively showing a want of responsibility on the part of defendant.
The other contentions of plaintiff in error are sufficiently answered by referring to Texas & Pacific Ry. v. Rosborough, 235 U.S. 429, and cases cited.
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