
    McGINTY v. PENNSYLVANIA R. CO.
    (Circuit Court of Appeals, Sixth Circuit.
    July 17, 1925.)
    
      No. 4341.
    
    1. Railroads <©=>274(2) — Railroad held to owe coal company employee duty of exercising reasonable care to keep premises free from obstructions likely to causé injury.
    Railroad held, to owe employee of coal company, moving loaded coal cars over tracks of railroad, from point where delivery was made to coal company, duty of exercising reasonable care to keep premises free from unusual and unnecessary obstructions and defects likely to 'cause him injury.
    2. Railroads <©=>282(8) — Negligence as to person tripping over unattached rails held for jury.
    In action for injuries sustained by employee of coal company, tripping over unattached rails when moving loaded coal ears, whether railroad, knowing resultant menace to safety of plaintiff, left rails in their dangerous position an unnecessary and unreasonable length of time, and whether such act constituted negligence, which was direct and proximate cause of plaintiff’s injuries, held, for jury.
    3. Railroads <©=>282(8) — Contributory negli-
    gence of one tripping over unattached rails held for jury. '
    
    In action for injuries sustained by employee of coal company tripping over unattached rails, when moving loaded coal cars over tracks of defendant railroad, whether he was guilty of contributory negligence held, for jury.
    In Error to the District Court of the United States for the Eastern Division of the Northern District of Ohio; D. C; Westenhaver, Judge.
    Action by Patrick MeGinty against the Pennsylvania Railroad Company. Judgment for defendant, and plaintiff brings error. Reversed, and new trial ordered.
    Paul R. Brown, of Cleveland, Ohio (Howell, Roberts & Duncan, of Cleveland, Ohio, on the brief), for plaintiff in error.
    Atlee Pomerene, of Cleveland, Ohio (Squire, Sanders & Dempsey, of Cleveland, Ohio, on the brief), for defendant in error.
    Before DONAHUE and MOORMAN, Circuit Judges, and TUTTLE, District Judge.
   TUTTLE, District Judge.

This was an action at law against the Pennsylvania Rail-, road Company to recover damages for personal injuries alleged to have been received by the plaintiff as a result of the negligence of the defendant. The trial court directed a verdict in favor of the defendant, and the plaintiff has brought the case here on writ of error. The sole question presented is whether the court erred in thus directing a verdict.

Plaintiff was employed by the American Trimming Company (hereinafter called the coal company) in moving loaded coal ears over switch tracks from the point where such ears had been delivered by the defendant to the coal company, on an elevated “hump” track, down an incline, to an unloading device, from which they were automatically unloaded by the coal company into boats at its dock. These tracks, of which there were three a few feet apart, were located on the right of way of the defendant, and were owned, controlled, repaired, and maintained by it. The only relation of the coal eompa/ny to such tracks was that of a consignee there accepting delivery of loaded freight cars, moving such cars to its dock, and unloading the cars into its boats. During its handling of this carload freight in these unloading operations, the coal company and its employes, including the plaintiff, had temporary possession and control of the cars involved, but not of the tracks of the defendant, nor of the premises of the defendant adjacent thereto. Such tracks and premises remained in the custody and control of the defendant, which recognized and undertook the duty of keeping them in repair. In the course of making repairs on these switch tracks, the defendant, through its authorized servants, acting within the scope of their employment, brought and placed upon the premises just referred to, in the space between two of such tracks and about 18 inches from one of them, three 30-foot 85-pound rails, preparatory to using them in repairing the tracks at a point where the plaintiff and Other employes of the coal company were ‘daily engaged, to the knowledge of the defendant, in their work of moving, unloading, and handling the cars already mentioned. Tt was known to defendant that in doing this work the employes of the coal company were required to run along beside the moving freight ears and climb upon the ears while in motion.

Instead of promptly using these loose rails, the defendant, without any apparent justification or reason, left them where they had been so placed and allowed them to remain there for a period of three months pri- or to, and up to, the day when the plaintiff received the injuries for which he sues. On that day, while running along, near one of the tracks in question, in order to reach and handle a moving, loaded ear, plaintiff tripped over one of the loose rails, lying close to such track, and as a result fell in front of such car, and .thereby sustained serious injuries. Plaintiff testified that tbe car bad started down tbe incline, and that in accordance with tbe usual manner of handling and stopping tbe ear it was necessary for him to burry in order to catch it, climb up tbe ladder, and apply tbe brakes before it got beyond bis reach, and that, although be knew that these loose rails bad been lying near tbe tracks, be did not have bis mind on them at this time, but was looking straight ahead, watching tbe car, preparatory to catching tbe grab handle on the side of tbe car. It is apparent that bis attention was completely occupied by tbe need for quick action and concentration upon this ear which be was handling.

At tbe close of plaintiff’s evidence, the defendant moved for a directed verdict, on tbe grounds that tbe plaintiff’s proofs failed to show any actionable negligence on tbe part of tbe defendant, and that such proofs showed contributory negligence on tbe part of tbe plaintiff, depriving him of tbe right to recover. Tbe court granted tbe motion on tbe first ground mentioned. Tbe trial court was of tbe opinion, as appears from bis oral charge to the jury thus directing a verdict in favor of tbe defendant, that under tbe facts disclosed by tbe testimony tbe defendant owed to tbe plaintiff no duty except that of refraining from causing him injury from bidden danger known, only to tbe defendant, and that tbe evidence did not show tbe defendant to be guilty of any negligence rendering it liable to tbe plaintiff for tbe injuries sustained by him. Tbe correctness of this ruling is duly assigned as error.

We are unable to agree with tbe conclusion reached by tbe trial court. Tbe record clearly shows that at tbe time when plaintiff was injured be was performing bis duties for bis employer upon tbe premises of tbe defendant, and that tbe defendant knew of bis presence there then and for a period of several months prior thereto. Defendant well knew and fully understood that under its arrangement with’ tbe plaintiff’s employer, by which tbe latter was moving and handling these cars in tbe manner described, it was necessary for the employes of tbe coal company, including plaintiff, to be on and about these tracks upon tbe premises of tbe defendant in tbe performance of their duties. This, indeed, was necessarily incidental to tbe carrying out of tbe arrangements made between tbe defendant and tbe eoal company with respect to tbe movement and unloading by tbe latter of tbe cars of tbe defendant on and over tbe tracks in question. We cannot doubt that under tbe circumstances here presented tbe defendant owed to tbe plaintiff tbe duty of exercising reasonable care to beep tbe premises where be was thus working free from unusual and unnecessary obstructions and defects which would be likely to cause him injury. Middleton v. P. Sanford Ross, Inc., 213 F. 6, 129 C. C. A. 622 (C. C. A. 5); Pennsylvania Railroad Co. v. Lackner, 246 F. 931, 159 C. C. A. 203 (C. C. A. 3); Hodges v. Erie Railroad Co., 257 F. 494, 168 C. C. A. 498 (C. C. A. 6); Waldron v. Director General, 266 F. 196 (C. C. A. 4); Director General v. Reynolds, 268 F. 948 (C. C. A. 6).

It would seem, also, that as plaintiff, a servant of bis immediate employer, tbe coal company, was at tbe time of bis injury performing bis duties upon premises furnished by defendant, tbe latter bad temporarily undertaken to perforin for said employer tbe duty which tbe latter owed to plaintiff of using reasonable care to provide him with a safe place' to work, and that, if defendant failed to perform such assumed duty to plaintiff, it was liable to him for resulting damages. 18 Ruling Case Law, 542; Pennsylvania Railroad Co. v. Hummel, 167 F. 89, 92 C. C. A. 541 (C. C. A. 3); Idaho & W. N. Railroad Co. v. Wall, 184 F. 677, 106 C. C. A. 631 (C. C. A. 9); D’Almeida v. Boston & Maine Railroad Co., 209 Mass. 81, 95 N. E. 398, Ann. Cas. 1913C, 754.

Nor can we avoid tbe conclusion that there was evidence which at least required tbe submission to tbe jury of tbe question whether the defendant negligently placed and left these rails lying where they were, and must have been known by defendant to be, a constant menace to plaintiff while engaged in tbe performance of bis duties on its premises. Cincinnati, N. O. & T. P. Railroad Co. v. Davis, 293 F. 481 (C. C. A. 6); Baltimore & Ohio Railroad Co. v. Kast, 299 F. 419 (C. C. A. 6); Baltimore & Ohio Railroad Co. v. Flechtner, 300 F. 318 (C. C. A. 6). It is unnecessary to determine whether tbe defendant was guilty of negligence in merely placing such rails there, considering' the apparent necessity for their presence for tbe purpose of making repairs. We are, however, of tbe opinion that it was a question of fact for tbe jury whether tbe defendant, knowing tbe resultant menace to tbe safety of tbe plaintiff, left tbe rails in their dangerous position an unnecessary and unreasonable length of time, and, if so, whether tbe act of tbe defendant in thus increasing tbe peril to tbe plaintiff, constituted negligence which was tbe direct and proximate cause of the injury sustained by plaintiff. Snare & Triest Co. v. Friedman, 169 F. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367 (C. C. A. 3); McGrath v. American Express Co., 219 Mass. 314, 106 N. E. 855; Burdick v. Chicago & Northwestern Railway Co., 123 Minn. 105, 143 N. W. 115.

We think, also, that the testimony of the plaintiff regarding the emergency and difficulty confronting him at the time of his injury, and all of the surrounding circumstances, made the question as to his contributory negligence one for the jury, at least upon the present record.

It is unnecessary to consider whether plaintiff’s employer, the coal company, also failed to perform its duty of care towards plaintiff, as any such failure wouíd have constituted, at most, merely negligence concurring with that of the defendant, and would not have absolved defendant from liability, for its own negligence.

For the reasons stated, the judgment must be reversed, and a new trial ordered.  