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“It is understood that you are to protect us for the difference as between your price of 6 cents per pound net and the final selling price which our buyers are paying for the material. You will understand that we will have to divide the above overage with two other brokers.”

From this definition of overage as the difference between 6 cents Henry was to have, and 10 cents, “the final selling price which our buyers are paying for the material,” and insisting on protection from that source by Henry it will be seen that no ground existed for a claim of commission. Indeed, the papers show that this was in the nature of a joint venture, where both parties were to participate in an expected resultant profit namely, Henry to the extent, to use the terms of his letter, of "your price of 6 cents per pound net," and Craigie in the terms of their letter the excess over "a price of six (6) cents per pound, net without commission.” And this participating in the result of a joint venture as a profit is evidenced by Craigie's letter of June 27th to Henry. He speaks of his overage, creating the profit, in these words, as quoted above:

"I hope that on the next contract for you we can sell direct to the buyer, and save both you and ourselves the major part of the profit."

Indeed, upon the writings as a whole—and, as we have said, they evidence the dealings between the parties—we are clear that the singularly large prospective overage of the joint venture, and not the relatively small customary commission of a broker, was the profit to which Craigie was looking, and that the trial judge should have affirmed the defendant's point for binding instructions. By doing otherwise, the court failed to enforce the written contract the parties had made for overage, and permitted the jury to enforce a supposed contract for commissions, which the parties had not only never made, but expressly stipulated was not made.

The judgment below is reversed, and the cause remanded for further proceedings.

HOLLAND et al. v. DIRECTOR GENERAL OF RAILROADS.
(Circuit Court of Appeals, Third Circuit. June 17, 1921.)

No. 2638. 1. Trial Cw141-When evidence on vital issue is undisputed or legally con(273 F.) by an internal transverse fissure not discoverable by inspection, that the track was inspected daily, and that the rail was made by a reputable manufacturer, held to exonerate the railroad company from liability for the injury.

clusive, court should direct verdict.

In an action against a carrier for injury to a passenger, where evidence on the issue of defendant's negligence is such that fair-minded men might draw different conclusions therefrom, the case should be submitted to the jury; but, if evidence that it exercised the high degree of care required by law is undisputed, or of such conclusive character that the court, in the exercise of a sound judicial discretion, would set aside a verdict in

opposition to it, it is the duty of the trial judge to direct a verdict. 2. Carriers Cw301-Railroad company held not liable for injury to passenger

caused by derailment.

Affirmative and undisputed evidence that derailment of a train by which a passenger was injured was due to the breaking of a rail, caused For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 273 F.-59

In Error to the District Court of the United States for the District of New Jersey; Joseph L. Bodine, Judge.

Action at law by Hazel Holland, by her next friend, Thomas Holland, and Thomas Holland, against the Director General of Railroads. Judgment for defendant, and plaintiffs bring error. Affirmed..

Charles J. Stamler, of Elizabeth, N. J., for plaintiffs in error.
Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

DAVIS, Circuit Judge. This is an action to recover for personal injuries to Hazel Holland received October 4, 1919, while riding on one of the trains operated by defendant between Rahway and Newark, N. J. The train, composed of a locomotive and four cars, was derailed at South Elizabeth station, and the plaintiff Hazel Holland was thrown against a window of the car in which she was riding, and received the injuries of which she complains. At the conclusion of the case, the learned trial judge directed a verdict against the plaintiffs on the ground that the evidence did not establish any negligence on the part of the defendant

11) If the evidence showed that the defendant was guilty of any negligence contributing proximately to the accident, or facts, whether in dispute or not, from which fair-minded men might honestly differ as to the conclusions to be drawn from them, the case should have been submitted to the jury, and the question of negligence not decided by the judge as a matter of law, provided there was no evidence showing that the plaintiff was guilty of contributory negligence. Pennsylvania Railroad Co. v. Matthews, 36 N. J. Law, 531; John Nolan v. Bridgeton & Millville Traction Co., 74 N. J. Law, 559, 65 Atl. 992; Bower v. Bower, 78 N. J. Law, 387, 74 Atl, 522; Bennett v. Busch, 75 N. J. Law, 240, 67 Atl. 188; More-Jonas Glass Co. v. West Jersey & Seashore Railroad Co., 76 N. J. Law, 708, 72 Atl. 65. If, on the other hand, the defendant had used that high degree of care for the safety of the plaintiff Hazel Holland, which it owed her under the law, and the evidence showing such care was undisputed, or if disputed or conflicting, was nevertheless of so conclusive a character that the court in the exercise of a sound judicial discretion would set aside a verdict in opposition to it, it was the duty of the trial judge to direct a verdict, for he stands primarily charged with the full responsibility for the just outcome of the trial. Randall v. Baltimore & Ohio Railroad, 109 U. S. 478–482, 3 Sup. Ct. 322, 27 L. Ed. 1003; Patton v. Texas & Pacific Railway Co., 179 U. S. 658-660, 21 Sup. Ct. 275, 45 L. Ed. 361; Woodward et al. v. Chicago, M. & St. P. Ry. Co., 145 Fed. 577, 578, 75 C. C. A. 591 (C. C. A. 8th Circuit). In an accident such as this, which raises a presumption of negligence, the case must go to the jury, unless.the evidence introduced by the defendant conclusively exculpates it from negligence. Dusenbury v. North Hudson County Railway Co., 66 N. J. Law, 44, 48 Atl. 520.

[2] The undisputed evidence shows that the derailment of the train in which the plaintiff Hazel Holland was riding was due to the breaking of a rail, caused by a lateral or "internal transverse fissure," which was concealed and could not have been detected by the naked eye, and that no other test than the actual breaking of the rail would have revealed this defect. The rail was made by the Maryland Steel Company, a reputable manufacturer of standard rails used by the Pennsylvania Railroad Company, the New York Central, and many other railroads throughout the United States. The rail had been in use about five years, which is only about one-third of the normal life of a rail, used as this one was. This particular piece of track, including this rail, was inspected daily by both the superintendent of maintenance and a trackwalker, the latter of whom had examined the track at the place of the accident about 15 minutes before it occurred. It has been held by the Court of Errors and Appeals of New Jersey, and also by this court that a defendant is not liable for injuries resulting from a latent defect of which it was ignorant, and which could not be discovered by reasonable care and diligence. Stassett v. Taylor Iron & Steel Co., 82 N. J. Law, 631, 83 Atl. 881; Pennsylvania Railroad Co. v. Buckley, 210 Fed. 268, 127 C. C. A. 86.

These cases are readily distinguished from the case of Gleeson v. Virginia Midland Railroad Co., 140 U. S. 435, 11 Sup. Ct. 859, 35 L. Ed. 458, relied upon by plaintiffs. In that case the train was derailed by a landslide, which raised a presumption of negligence, which defendant did not overcome by showing that rain caused the landslide and consequent derailment. This landslide was not unavoidable, and could not be classed as an act of God, for the road could have been so constructed as to avoid the landslide. Whether or not due care in the construction of the railroad would have taken into account possible landslides and provided against them were questions for the jury.

We think the undisputed evidence shows in the case before us that the defendant discharged its full duty to the plaintiffs and exculpated itself from the presumption of negligence raised by the accident. It was therefore the duty of the learned trial judge to direct a verdict, and the judgment is affirmed.

(273 F.)

RADCLIFFE v. BALTIMORE & 0. R. CO.
(Circuit Court of Appeals, Fourth Circuit. May 4, 1921.)

No. 1822.

Master and servant ma 112 (3)—

Injuries to brakeman, slipping on gravel, held not actionable.

A railroad company held not chargeable with negligence because it did not keep the top of a retaining wall alongside its track on a private siding free from gravel or other substances, which rendered it liable for injury to a brakeman, who slipped on such substances and fell, when walking on the wall in moving cars on the track.

In Error to the District Court of the United States for the Northern District of West Virginia, at Wheeling : Alston G. Dayton, Judge.

Action at law by Frank Radcliffe against the Baltimore & Ohio Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

C. W. Dille, of Cleveland, Ohio (Thomas Ray Dille, of Morgantown, W. Va., on the brief), for plaintiff in error.

Frank W. Nesbitt, of Wheeling, W. Va., for defendant in error. Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

WADDILL, District Judge. This is a writ of error to the judgment of the District Court for the Northern District of West Virginia, rendered on the 30th of October, 1919, sustaining the demurrer to the plaintiff's declaration, and dismissing his suit.

The plaintiff's case briefly is that, while he was in the employ of the defendant as a brakeman on one of its freight trains, engaged in transportation of freight in interstate commerce, he sustained the injury complained of; the defendant being at the time engaged in the operation of its train on a private siding of the Stafford Coal Company, near to its main track at or near Baxter, county of Marion, West Virginiathe specific charge being that, while the plaintiff, as such brakeman, was so engaged, the defendant allowed a certain platform upon said private siding, which was part of the platform in front of the store or storage buildings of said coal company, and constructed by having a retaining wall of about 8 or 10 inches in width and 41, feet high, along the said private siding, which said platform was filled, back of said wall, with cinders or slack, leaving not more than 12 inches of clearance space between the wall and the freight cars running beside said wall; that the top of said retaining wall was smooth, when it should have been notched, grooved, or roughened ; that there had been allowed to accumulate thereon certain gravel or other round or uneven substances, which rendered said wall, or that part of said platform, unsafe and dangerous to walk upon; and that the plaintiff, while in the performance of his duty as such brakeman, was in the act of stepping hurriedly from a freight car on defendant's train to said platform, he

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

stepped upon certain gravel or other substance which had been allowed to accumulate on said wall, and which was invisible and unknown to plaintiff, which substance, rolling or sliding beneath his feet on said wall, caused him to slip, with such suddenness and force that it threw him down, resulting in the injury sued for.

The negligence alleged is the failure of the railroad company to sweep off or remove this gravel or other substance from the wall, before allowing its use by the plaintiff, and in not having the surface of the wall notched, grooved, or made rough, so that the plaintiff, in using the same, would not slip and fall therefrom.

Two questions are presented for the consideration of the court: First, whether the defendant is liable for the injuries sustained from the alleged defective construction of the retaining wall on the coal company's premises; and, second, whether a cause of action is set forth by the plaintiff against the defendant.

The first question, upon the averments of the declaration, may be said to be of the gravest doubt, since there is no allegation that the premises of the coal company, on which the plaintiff sustained the injury, were either owned, used, or controlled by the defendant company. But this need not be passed upon, as the same becomes unimportant in view of the conclusion we have reached upon the second question, namely, whether a cause of action is charged against the defendant. The correct determination of the latter is readily reached, when considered in the light of principles properly applicable.

The plaintiff's right of recovery is based entirely upon the defendant's negligence, and, unless this is averred and proved, no recovery can be had. The plaintiff was an employé of the defendant, and upon entering its service the latter assumed certain obligations for his protection, namely, that it would exercise proper care to provide a reasonably safe place for the plaintiff to work, in the discharge of his duties. This obligation on the part of the defendant was not to insure plaintiff's safety, or freedom from danger, but only to exercise ordinary care; that is, such care as an employer of prudence, engaged in like service, would and should undertake on behalf of his employés engaged in similar service, under like circumstances. It will readily be seen that to impose on an employer the duty to see that gravel or other substances, so delicate as to be invisible to an employé, did not gather upon top of the retaining wall used by the latter, or to require him to notch, groove, or make rough the ordinary siding and walkways upon and over which employés would pass in the discharge of their duties, would be to place upon him an intolerable burden and expense, and in effect make him an insurer against danger, and charge him with a higher degree of care than is afforded a citizen in the ordinary use of the streets and highways of the community.

The lower court's action in sustaining the demurrer to the plaintiff's declaration was plainly right, and the same will be affirmed.

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