#### ERSKINE R. K. HAYES v. THE UNITED STATES.

[Congressional, 12615.

Decided March 27, 1911.]

*On the Proofs.*

A young employee in the Bureau of Engraving and Printing trips upon a loose board, falls, and is injured for life. The defendants have left the board for months in this dart passage where it was the cause of the accident. But the young man has frequently been through the passage and over the board and knows of its insecurity.

1. A plaintiff who knows of an insecure plank in a passageway, and has passed over it frequently, is guilty of contributory negligence if he allows himself to trip upon it when with ordinary care he could pass over it in safety.

II. The Government is guilty of negligence when it allows an obstruction, apparently trivial but liable to prove serious, to remain for months in a public building and in a passageway dimly lighted.

*283III. Aii employee of tlie Government has no legal claim if he might with ordinary care have avoided the disaster, except where the rule of comparative negligence prevails.

IV. Congress have established the rule of comparative negligence in personal injury cases for employees engaged in interstate commerce. But in the case of an employee of the Government there is no legal liability, and Congress must determine whether anything should be paid to the employee as a gratuity.

*The Reporters'*statement of the case:

The claim in the above-entitled, cause arises out of personal injuries alleged to have been sustained by claimant while in the employ of the United States.

The claim was first referred to the court by the Committee on Claims of the House of Eepresentatives, February 27, 1905, under the act of March 3, 1887, and numbered 11762, Congressional. The cause was dismissed December 7, 1908, for nonprosecution, on motion of the defendants therefor.

Thereafter, on June 27, 1906, the United States Senate, by resolution, referred to the court, under the act of March 3, 1887, known as the “Tucker Act,” a bill in the following words:

“ [S. 4851, Fifty-ninth Congress, first session.]

“A BILL For the relief of Erskine It. K. Hayes.

*“Be it enacted by the Senate and House of Representatives of the United States of America in Congress*assembled, That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of any money in the Treasury not otherwise appropriated, to Erskine E. K. Hayes the sum of ten thousand dollars, in full compensation for injuries by him received on the sixteenth day of December, nineteen hundred and two, while in the performánce of his duty as an employee of the Bureau of Printing, Treasury Department, in the city of Washington, District of Columbia.”

The claimant appeared and filed his petition in this court, in which he makes substantially the following allegations:

That your petitioner is a loyal citizen of the United States, residing in Clinton County, Ohio; has always been a total abstainer from the use of intoxicants, tobacco, and narcotics of any kind, and until he received the injuries hereinafter *284complained of in the Bureau of Engraving and Printing in Washington, D. C., was in perfect health in every respect, was 6 feet in height, weight 180 pounds, and was in every way in perfect physical condition.

On the 13th day of February, 1902, plaintiff entered the employment of the United States Government in the Bureau of Engraving and Printing, Department of the Treasury, at a salary of $660, and remained in said employment up to and including the 16th day of December, 1902.

On said 16th day of December, 1902, petitioner was and for some weeks prior thereto had been in charge of the electric passenger elevator in the Bureau of Engraving and Printing aforesaid. As a part of his duty he was required to go to the motor room in the sub-basement to make electrical connections so as to start the said elevator at 7 o’clock a. m. To go to said motor room he must necessarily go from the first floor of the basement by a certain stairway and hallway, which at that hour was very dark.

Prior to said day an excavation had been made under the floor of the east end of the said hallway in said sub-basement, and to make this excavation a hole had been cut through the floor of said hallway, and after said work was finished some oak boards had been placed in the floor loosely fitted over said opening, which were negligently left unnailed or otherwise secured or held in place except by their own weight, and by reason thereof had become slightly warped and turned up at the edges, but not observable by the use of reasonable or ordinary care. The fact that said boards were loose, warped, and turned up at the edges was unknown to petitioner until after he received the injuries hereinafter complained of, when upon investigation he found such to be the fact. On said 16th day of December, 1902, petitioner entered the said Bureau of Engraving and Printing at 6.45 a. m. by said stairway and hallway to go to the motor room where his duty called him, and in going thereto he necessarily passed over said loose boards, negligently placed and left so as aforesaid, one of which, when he stepped thereon, gave way without fault,on his part, letting his left foot down between the boards and throwing him violently to the floor, *285resulting in a fracture of the radius of the left forearm near the wrist, in an injury to the left shoulder, to the left leg between the knee and the ankle, and to the spinal column, from which said injuries petitioner was totally incapacitated for the performance of manual labor or anything to bring an income; said incapacity has continued without cessation to the present time and will so continue through life.

Petitioner alleges that he received injuries while engaged in the discharge of his duties, to which he had been assigned by his superiors, and that he received same through no fault, want of care, or negligence on his part, but same was due to conditions and causes over which he had no control, and through the negligence of some one superior to him.

Petitioner by reason of said injuries has suffered much pain and will continue to do so; has expended large sums of money for medical treatment, care, and attention, and has been and is totally incapacitated from performing manual labor or any other work that will require any continued exertion, by reason of all which he has been damaged in the sum of $10,000.

The following are the facts of the case as found by the court:

I. The claimant, Erskine R. K. Hayes, entered the service of the United States as a laborer in the Bureau of Engraving and Printing on the 13th day of February, A. D. 1902, at the annual rating of $660, and continued in that service until the 16th day of December, A. D. 1902. At and prior to said last-mentioned date he was in charge of the electric or passenger elevator in said bureau by orders of his superiors.

II. About four months prior to said 16th day of December, A. D. 1902, in making repairs and improvements in the building occupied by the Bureau of Engraving and Printing, an opening about 6 feet long and 2 feet wide had been made in the asphalt and cement floor of a hallway in the sub-basement of said building, and an excavation made thereunder about 2-1 or 3 feet in depth, which was then filled with loose dirt. This excavation extended a little more than halfway across the north and south hallway in said sub-basement and occupied about one-half of the space of a hallway cross*286ing said north and south hallway at right angles and leading to the motor room hereinafter mentioned. The opening in the floor was then covered with inch boards, laid lengthwise with said opening and nailed down so that said boards extended their thickness above the floor. The claimant assisted in doing this work. These boards, after being placed, warped and slightly turned upward at the edges and ends. These conditions existed on December 16, 1902, and at the time the said Erskine R. K. Hayes received the injuries hereafter described.

III. In assuming his duties in the morning it was necessary for the claimant to go down into said sub-basement, pass along said north and south hallway until reaching said hallway, crossing it at right angles, then turn to the right and pursue the last-mentioned hallway to his destination. On the morning of the 16th of December, 1902, the claimant in going to assume his duties as such elevator conductor went down into said subbasement, passing along said hallway, which had no light except artificial light and at that time was dimly lighted with incandescent electric lights, and while so passing he stubbed his toe on the boards covering said opening and fell down, fracturing the radius of his left forearm (known as Colles’s fracture) and severely injuring his back. By so stubbing his toe and falling he loosened at least one of the boards covering said opening. The claimant had passed over said temporary covering several times a day ever since the same had been put in place.

IV. At the time of receiving said injuries said claimant was a sober, industrious, and intelligent young man, about 22 years of age, in good physical health, about 6 feet in height, and weighing about 180 pounds. Said injury to the back of the claimant resulted in a serious and incurable disease of the spine from which the claimant has suffered ever since such injury, and in consequence whereof the claimant has become a helpless cripple unable to perform manual labor and will probably remain so during life. Said disease of the spine resulting from said injury has resulted in marked deformity of the same, causing the claimant at all times considerable pain, and he will probably remain an *287almost helpless invalid for life, unable to do but little or anything for his own support.

V. We find as a fact, so far as it is a question of fact, that, the Government was guilty of negligence in allowing said temporary covering to remain in such condition for so long-a time, and also in having said hallway so dimly lighted at the time of such accident; and that the claimant was guilty of contributory negligence in not exercising ordinary care while passing along said hallway and over said tern' por ary covering.

*Mr. G. W. Swaim*and *Mr. Melville Mayes*for the claimant.

*Mr. P. M. Gox*(with whom was *Mr. Assistant Attorney-General John Q. Thompson)*for the defendants.

BaRNey, J.,

delivered the opinion of the court:

This claim comes to this court under the fourteenth section of the Tucker Act. The claimant entered the employment of the Government as a laborer in the Bureau of Engraving and Printing in the month of February, 1902, and at the time of the accident hereinafter .mentioned and for some time before was performing the duties of elevator conductor. In order to begin his said duties in the morning it was necessary for him to go down two flights of stairs into the subbasement and pass along a hallway to the motor room of the elevator.

In August, 1902, for the purpose of making some improvements about the building of the Bureau of Engraving and Printing, the Government had made an opening in the floor in said hallway, digging out a section of the cement floor and making a cavity 6 or 7 feet in length, 2 or 3 feet in width, and 2^ or 3 feet in depth. This cavity was filled with earth and then covered with inch boards nailed down, leaving them extending their thickness above the cement floor. They were permitted to remain in this condition until the accident hereinafter mentioned.

On the 16th day of December, 1902, the claimant reached the Bureau of Engraving and Printing about 6.45 a. m., and proceeded to the motor room above mentioned to begin his *288duties, and passed along said hallway until he reached said ■temporary floor covering', when he stubbed his toe against the same, fell down, and received the injuries mentioned in the above findings. It appears that at this time the hallways were dimly lighted with incandescent electric lights. It also -appears that the claimant assisted in making this excavation ' and had- passed over- this temporary covering several times every clay since it was constructed.

From these facts it appears to us beyond question that the •claimant was guilty of negligence, which contributed to the accident complained of, and if the case were tried to a jury any court would so decide. On the other hand, we believe the Government was negligent in allowing such an obstruction, which, though apparently trivial, was liable to, as it did in this case, prove serious, to remain so long before making a permanent covering to the excavation mentioned level with the balance of the floor; and was also negligent in having these hallways so dimly lighted at the time.

It is unnecessary to say that the claimant has no- legal claim ■against the Government,‘and, except where the rule of comparative negligence prevails; would have no claim against a private individual or corporation under the same state of facts.

Neither has the claimant any equitable claim except such as may arise from the fact that the Government was partly responsible for the injury received. It may be well to call - attention to the fact that Congress, by the act of April 22, 1908 (35 Stat. L., 65), has established the rule of comparative negligence in personal-injury cases by employees engaged in interstate commerce. While of course this act has no direct application to the case of the claimant it is cited to show the tendency of modern legislation on the subject of comparative negligence. It might also be added that several states have recently established the rule of comparative negligence in all •cases of that class.

The helpless and pitiable condition of the claimant appeals strongly to our sympathies, but we must find the facts as the ■evidence proves them, and state the law applicable to the .same as we believe it to be, leaving to Congress to determine *289whether anything, and, if so, what amount, should be paid to the claimant by way of bounty or gratuity.

These findings and conclusions will be transmitted to Congress, together with copies of the opinions.

HowRT, Judge,

delivered the following opinion:

Sympathizing with the claimant as much as any judge can or should, I am at the same time constrained to find from a careful examination of the evidence that there was no negligence on the part of the Government.

There was no space between the lower surfaces of the boards and the earth filling the trenches, that being the condition at the time the claimant stubbed his toe. There can not well be a reasonable doubt, if disinterested evidence proves anything, but that the planking was securely nailed down at the time. Other employees in the building passed over the planking several'times a day before and after the 16th day of December, 1902, and found it in perfect condition.

In passing from the foot of the steps in the sub-basement to the elevator at the west end of the east-west corridor it was not necessary to pass over the planking, although the same was across the path petitioner would naturally take. Lights were burned nightly in the corridors for the benefit of the night watchmen, who made the rounds of the halls where the planking had been restored. The corridors were lighted by incandescent electric bulbs arranged in clusters. There was one cluster overhead at the intersection of the two corridors nearly over the place where the claimant fell. Another cluster was in the east-west corridor about 8 feet away, and others were placed immediately north and south. The claimant arrived at the building at a quarter to 7 o’clock in the morning. The circumstantial evidence is strong that the lights had not been turned off at the time of claimant’s arrival. At the time of the alleged injury the foreman of electricians on duty at the time in the building received no complaint from the claimant or from any source that the lights had been extinguished.

The claimant (who is the only witness as to the causes of his fall) made no outcry at the time, and made no call to a *290colored boy whom he concedes that he saw as, he says, he was getting np. (Eec., 3 and 16.)

Dr. Barton, of Washington, D. C., whom, the claimant says he consulted when he left the building several hours after the alleged fall, has not been called to testify.

After returning to Ohio, besides serving as deputy clerk in the county courts at Clinton, claimant accepted employment with the Metropolitan Life Insurance Company of New York. He subsequently engaged in the work of photography, and continued in this vocation until February, 1910. He was married on July 24, 1904.

I concur in the conclusion that the claimant has no legal or equitable claim against the Government. There is no room for the application of any rule of comparative negligence. v

Neither the Government nor the owner of any other house is required to construct the interior flooring with even surfaces throughout. Negligence can not arise against the owner of a building because of uneven surfacing of flooring in rooms and halls. If the law requires the floors of every Government building or dwelling house or place of business to be on an exact level for the owner to escape the conclusion of negligence, then most buildings everywhere need reconstruction.

The rule of comparative negligence in personal-injury cases by employees engaged in interstate commerce, established by the act of April 22, 1908, 35 Stat., 65, is without bearing in the present case for any purpose. The act cited by the majority of the court relates to the liability of common carriers by railroad to their employees. That act should not be confused with the only act relating to compensation for injuries sustained in the course of their employment by Government employees. The sole act relating to such claims by Government employees was not passed until May 30, 1908, 35 Stat., 556. It is entitled “An act granting to certain employees of the United States the right to receive compensation for injuries sustained in the course of their employment.”

*291There is a proviso to the later act “ that no compensation shall be paid under this act *where the injury is due to the negligence or misconduct of the employee injured.'1''*

The act of 1908 is not general, but relates to an artisan or laborer in manufacturing establishments of the United States, its arsenals or navy yards, or in the construction of river and harbor or fortification work, or in hazardous employment on construction work in the reclamation or management and control of arid lands, or in hazardous employment under the Isthmian Canal Commission. In such cases one year’s pay is allowed *where there is no contributory negligence.*

Probably Congress have the power to change the law at will for all cases. Should the legislative authority be exercised to make a donation in the present case, that is a matter for determination there. The function of the court in stating conclusions is restricted to the ultimate fact and the law arising out of the record.

For the reasons set forth I can see no room for the application of any rule of comparative negligence as that question relates to the present case either in fact or in law.