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    EL PASO & S W R. CO. v. VIZARD, 211 U.S. 608 (1909)

    U.S. Supreme Court

    EL PASO & S W R. CO. v. VIZARD, 211 U.S. 608 (1909)

    211 U.S. 608

    EL PASO & SOUTHWESTERN RAILROAD COMPANY, Piff. in Err.,
    v.
    H. D. VIZARD.
    No. 31.

    Argued November 30, December 1, 1908.
    Decided January 4, 1909.

    Defendant in error, plaintiff below, was a brakeman in the employ of the railroad company, plaintiff in error, and on February 22, 1904, was injured while in the performance of his duties as brakeman. He brought suit for $25,000 in the district court of El Paso county, Texas, charging negligence on the part of the company. Subsequently he amended his petition by adding the allegation that the car, in getting onto which he was injured, was used in interstate shipment, and that the cause of the injury was a lack of hand holds and grabirons irons required by the safety appliance statute of the United States. Thereupon the railroad company removed the case to the circuit court of the United States for the western district of Texas. A trial was held in April, 1906, which resulted in a judgment for $6,000. This judgment was affirmed by the court of appeals, and from that court brought here on error.

    Messrs. J. F. Woodson and Millard Patterson for plaintiff in error. [211 U.S. 608, 609]   Messrs. W. H. Robeson and George E. Wallace for defendant in error.

    Statement by Mr. Justice Brewer: [211 U.S. 608, 610]  

    Mr. Justice Brewer delivered the opinion of the court:

    The circumstances of the injury, generally speaking, were these: The freight train on which plaintiff was acting as brakeman was directed to stop at Osborne and pick up a water car. This water car was a flat car with a tank on it,-a temporary water car. It had an iron hand rail on each side and upright posts, or standards, through which, near the top, the rail extended, on each end of which was supposed to be a nut to hold the rail in position. After the water car and another car on the siding had been coupled to the train, the conductor gave the signal to pull out, and, as it drew near the switch, the water car passed the plaintiff, then standing on the ground. He put his foot on the journal box, reached up, and caught hold of the rail near the rear end of the car. It slipped out of the standard, and he fell and was injured. It appears that there was no nut at that end of the hand rail, and the weight of the plaintiff pulled the rail out from the standard. One witness, who examined the car just before as well as after the injury, said that the end of [211 U.S. 608, 611]   the hand rail, where the nut ought to have been, was rusty, as though none had been there for some time. Another witness supported him as to the rusty condition of the end of the rail immediately after the accident. There was testimony that plaintiff followed a common way of getting onto such a water car. Indeed, on an open, moving car, a hand rail running through standards on the side, and within easy reach, would naturally suggest doing just what the plaintiff did. It certainly could not be declared, as a matter of law, negligence. On the part of the defendant there was testimony that this car had a hand hold on the standard at the front end of the car, such as is required by the statute of the United States, that the company had an experienced inspector, who stated that he had inspected the car the day before the injury, found one nut gone, and replaced it, and that the car otherwise was in good condition.

    This outline of the testimony is all that is sufficient, although there was quite a volume on both sides of the matters referred to. The court charged the jury as to the law governing the case, both in respect to the duty of the master to furnish a safe place, machinery, and tools, and the duty resting upon the employee of taking reasonable care of himself, following in the instructions the rules so often stated by this court. Hough v. Texas & P. R. Co. 100 U.S. 213 , 25 L. ed. 612; Northern P. R. Co. v. Herbert, 116 U.S. 642 , 29 L. ed. 755, 6 Sup. Ct. Rep. 590; Baltimore & O. R. Co. v. Baugh, 149 U.S. 368, 386 , 37 S. L. ed. 772, 780, 13 Sup. Ct. Rep. 914; Union P. R. Co. v. Daniels (Union P. R. Co. v. Snyder) 152 U.S. 684 , 38 L. ed. 597, 14 Sup. Ct. Rep. 756; Northern P. R. Co. v. Babcock, 154 U.S. 190 , 38 L. ed. 958, 14 Sup. Ct. Rep. 978. Without reviewing the various instructions in detail, it is enough to say that they clearly presented the matters in dispute and stated the law applicable thereto correctly. The verdict of the jury, approved as it was by the trial and appellate courts, settles the disputed questions of fact.

    Under these circumstances it does not seem necessary to notice in detail the several objections pointed out in the very elaborate argument of counsel for the railroad company. A careful examination discloses no error in the proceedings. The [211 U.S. 608, 612]   plaintiff was injured, and the questions of his care and the company's negligence were fully and fairly submitted to the jury.

    The judgment of the Court of Appeals is affirmed.

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