NORMAN fl. WABASH R. CO.
3. The right of plaintiff to recover is not defeated by the fact that' the conveyance was only a quitclaim deed. It is immaterial what covenants were in the deed. It is the fact that the plaintiff was induced by the false representations of the defendant to pay his money for the property that gives to plaintiff a cause of action, independent of the covenants in the deed. "It would be a reproach to the law to hold that a vendor who, by fraudulent representations, has induced a vendee to accept a quitclaim deed for land, can wholly escape liability for his fraud. The law ought to exact truth and honesty from vendors by quitclaim deeds as well as from those who give warranties of title. Of course, if the grantor in a quit· claim deed makes no false representations, he is not liable if the grantee acquires nothing by the deed. But in that case he is honest,-at least, does not deceive the vendee by misrepresentations. But when he induces the grantee, by falsehood, to accept a quit· claim deed, there is no rule of law or equity which will relieve him of liability for his fraud." Ballou v. Lucas, 59 Iowa, 24, 12 N. W. 745; Atwood v. Chapman, 68 :Me. 38; Wardell v. Fosdick, 13 Johns. 325. 4. Plaintiff is entitled to recover damages, which, under the testimony, I assess in the sum of $3,000. Let judgment be entered accordingly.
NORMA.'l v. WABASH R. CO. (Circuit Court of Appeals, Sixth Circuit. No. 163.
May 28, 18!)4.)
In an action again8t a railway company for personal injuries to an emhis evidence showed that, when he was at work in defendant's sheds, and was kneeling to look for marks on a bale of cotton, moved from the wall on a truck, its weight depressed the ends of loose boards in the floor, causing a bale standing at their other ends to fall on and injure him; that the floor had been in bad repair for sev<!ral years; but he denied that he knew of the defects in the f1.oor, and, on his testimony, his ignorance of its condition was possible and reasonable. Held, that he had the right to submit to the jury the issue whether he was negligent or not.
TO SERVANT-CONTRIBUTORY NEGLIGENCE.
In Error to the Circuit Court of the United States for the Eastern District of Michigan. This was an action by Frank Norman against the Wabash Railroad Company for personal injuries. At the trial the judge directed the jury to find for defendant, and judgment for defendant was entered on the verdict. Plaintiff brought error.
Frank Norman, the plaIntiff In error and the plaintiff below, was employed by the Wabash Railroad Company, the defendant, in Its freight sheds in Detroit. The freight sheds were divided into two parts by railway tracks. The north part was called the "city side" and the south part was called the "dock sIde." Norman's duties consisted of examining the tags or marks upon each package of merchandise and calling out the same to the checker,who made a record of them. This was done at the time when the packages were moved. The f1.oor of the north side of the shed had been in bad condition for several years, the boards were loose and the !ioor, under pressure, sagged In the mIddle. The atringers under the boards were defective, and the foundations of
thefiqQl' were generally 'Jut of repair. The eVidence for the plaintiff tended to ahow thatNol:'man worked time on the dock or south side of the freight sheds, alid that he was sent over to the city or north side at rare intervals only; that he did not know that the floor of the north side was in bad condition; that at 9 o'clock at night he went over to that side with a foreman and a truck to :\llovebales of cotton which were standing against the wall; that, after having removed all but two of the bales, he and the trUckman approached one of the two remaining baleS, and pulled it down on to the truck; that Norman could not' find the tag or mark on the upper part of the bale, and, in the dimly lighted building, stooped to find it below; that the foreman called to the, Wlckman to pull the bale toward the middle of the shed in order that might get more light; that the truckman did pull the bale several feet away from the bale which remained standing; that Norman kneeled to examine the lower part of the bale on the truck, when the remaining bale toppled and fell upon Norman's foot, inflicting a severe injury. The evidence tended to show that the weight of the loaded truck and the truckman on one end of the loose floor boards had depressed them, and thus lifted the bale at the other end of the boards, toppling it over. It was in evidence that the freight agent of the company and the division superintendent had visited the freight house, and had examihed the condition of the floor. The foreman, called by the defendant, testified that the bale which ultimately fell upon Norman's foot had fallen before, and had been replaced by Norman, and that he then deliberately placed himself so near the bale that when it fell again it necessarily injured him. He also stated that Norman was sent into the north side of the freight sheds for an hour or two every day, and that he must have been there several hundred times. There was no evidence to show what the duties of the freight agent or of the division superintendent were, or that they were charged with the repair and preservation of the freight house. The circuit court, at the conclusion of the evidence, on a motion by the defendant, instructed the jury to return a verdict for defendant on the ground that the plaintiff was guilty of contributory negligence, because he had as full opportunity as the defendant to know the dangerous condition of the floor, and yet continued to work upon it without complaint.
E. S. Grece, for plaintiff. Alfred Russell, for defendant. B.efore TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge. TAFT, Circuit Judge, after stating the case as above, delivered the opinion of the court. The law governing the reciprocal duties of employer and employe with reference to the safe condition of the place where the employe is to work, or of the machinery and tools with whieh he is to do his work, is well settled. It is the duty of the employer to exercise ordinary care to provide and maintain a reasonably safe place in which the employe is to perform his services, SOt that the employe shall not be exposed to unnecessary and unreasonable risks. The employe has the right to presume, when directed to work in a particular place, that reasonable care has been exercised by his em· ployer to see that the place is free from danger, and, in reliance upon such presumption, may discharge his duties in such place, unless there are obvious dangers which would lead a reasonably pru. dent employe either to refuse to work in the place, oJ.' to make com· plaint of the same to his master. If, however" the' danger is not actually known to the employe, or would not become known to an emplqye of reasonable prudence performing the duties imposed on him, he cannot be charged with contributory negligence in the
NORMAN V. WABASH R. CO.
happening of an injury to him by reason of the condition of the place in which he works. The law on the subject has been most clearly and comprehensively stated by Judge Sanborn, speaking for the circuit court of appeals for the eighth circuit in the case of Railway Co. v. Jarvi, 10 U. S. App. 439, 3 C. C. A. 433, 53 Fed. 65. In that case the plaintiff was a miner, who was injured by the fall of a large stone from the roof of the mine, and the question was whether the plaintiff had been reckless in not discovering or knowing the dangerous condition of the roof from which the stone fell. The learned judge, speaking Of the obligatIon upon the servant, says: .
"He cannot recklessly expose himself to known danger, or to a danger which an ordinarily prudent and intelligent man would, in his situation, have apprehended, and then recover of the master for an injury which his own recklessness has caused. · · · But the degrees of care in the use of a place in which' work is to be' done, or in the use of other instrumentalities for its performance, required of the master and servant in a particular case may be, and generally are, widely different. Each is required to exercise that degree of care in the performance of his duty which a reasonably prudent person would use under like circumstances; but the circumstances in which the master is placed are generally so widely different from those surrounding the servant, and the primary duty of using care to furnish a reasonably safe place for others is so much higher than the duty of the servant to use reasonable care to protect himself in a case where the primary duty of providing a safe place or safe machinery rests on the master, that a reasonahly Ill'lHlent person would ordinarily use a higher degree of care to keep the place of work reasonably safe, if placed in the position of the master who furnished it than if placed in that of the servant who occupies it."
See, also, Kane v. Railway Co., 128 U. S. 91-94, 9 Sup. Ct. 16; Railroad 00. v. McDade, 135 U. S. 554, 10 Sup. Ct. 1044; Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ot. 590. Coming to apply these principles to the e"idence disclosed by this record, the first important fact is that the floor of the north side of the shed had been in bad repair for several years. The company must be presumed to have had lmowledge of this, through its proper officers. The plaintiff denied that he knew of the defects in the floor, and testified that he had been so few times in the north side of the shed as to make his ignorance of its condition possible and reasonable. The fact that the foreman swears that Norman was every day in the north side of the sheds and had been there several hundred times, merely produces a conflict between the foreman and Norman, which it was for the jury to decide. The case made by the evidence for the plaintiff therefore was this: He received an injury when working in the sheds of the defendant as its employe. His injury was caused by the defective con· dition of the floor. The defendant company knew of this defective condition. Norman did not know of it. If he did not know it, he had no reason to expect that the moving of the truck upon the floor would cause the remaining bale to fall, and therefore, to kneel where he did kneel was not a voluntary or negligent exposure of himself to obvious injury. Manifestly, plaintiff had the right to submit to the jury the issue whether he was negligent or not. The judgment of the circuit court is reversed, with directions to order a new trial.
TEXAS & P. RY. CO. v. SCOVIL:LE.:
CoUrt of Appeals, Fifth Circuit. No. 208.
AND 8IllRVANT-LIABO;i'u iTO THIRD
May 22, 1894.)
WANTON AND MALICIOUS
and maliclou!!use of the steam whistle of a locomotive. by servants Of a railroad company who are In chal'ge of the locomotive, whifu'lt 18 lntnotlon 0Il a regular or authorized run, Is an act within the scope, of! their employment, so far as to charg-e the company with liability for injUries caused thereby. Locke, District Judge, dissenting;
In Error to the OIrcuit Court of the United States for the Eastern District dfTexas. This #,$ an action by P. A.. Scoville against the Texas & Pacific RaihvaY,Company fordanillges for personal injuries. The circuit court overruled a.demurrerto the petition, and rendered judgment for plaintttr. bl'()Ught error; T. J. Freeman, for plaintiff in error. O. C.neverett and R. O. De Graffenried, for defendant in error. Before McCORMICK, Circuit Judge, and LOOKE, District Judge. McCORMICK, Oircuit Judge. P. A. Scoville, the defendant in error, brought Jhis action.a.gainst the Texas & Pacific Railway Company, the plaintiff in.error, to recover damages for injuries he claimed to have received from the willful and wanton misconduct of its servants while engaged in its business. The part of his pleading pertinent to the guestions' raised on this writ of error is as follows:
"Plaintur, for cause of action, alleges that on the 2d day of May, 1891, he was riding. on horseback (returning home from Longview, Texas) along a public road running parallel with said railway of defendant company (said road on whIch plaintiff waaso riding on horseback being about twenty-five yards ,south of said railway), and that defendant company, its agents and knew: or could have, known of the existence of said public road, and Its proximity to said defendant company's railway, the same having beeq used by the traveling public for the period of fifteen years for travel, and In tull view. ,of said railway company's agents and that imIpediately south of the road on which plaintiff was riding was a fence; that while plaintiff was passing along said road, as above set forth and described, the place on said road on which he was riding as above indicated being about one-fourth of a mile tl,'om said town of Longview Junction, a point on said, rallway, ,a train of cars III charge of, and v.nder the control of, the agents and of defendant company, while coming east from said Lon,e:view Junction, whilenep-ing the plaintiff, and when directly opposite the plaintiff, the agents and of 'the defendant company, with' the intention to frighten plaintift's horse, commenced. and continued until some distance bethe whistle <!f the enginf)of said trainof cars in a manyond plaintiff, ner most calculated to frighten and render unmanageable horses and other domesticated "aJiUnals; that the manner of blowing said whistle at the time and the place' abGve mentibJied' was not called for nor demanded by any event or c1VClllll/;ltances within' the range of dbfendant company's legitimate business; that when the agents or of defendant company began to near, and until they. were beyond, plaintiff's horse, they began to give, and continued to give, keen and frightful sounds, in quick and rapid succession, by means of the whistle; the immediate effect of which was to frighten the1