76 F. 443 | 7th Cir. | 1896
after making the foregoing statement, delivered the opinion of the court.
In the interest of brevity and clearness, it is to be observed that the assignment of error in this record contains much redundant and irrelevant matter. The first specification is that the “court erred in denying defendant’s motion at the conclusion of all the evidence
The declaration is framed upon the theory that, in respect to the cars which the plaintiff was coupling when injured, the defendant owed him the ordinary duty which a railroad company owes to its employés engaged in handling its own cars, or the cars of other companies in use upon its linos. It is alleged that the plaintiff was assisting “in making up a train of freight cars for the defendant,” that the two cars which he was coupling were “part of the train or trains operated upon defendant’s line of railway,” and “that it became and was the duty of the defendant to have and keep said car in good and safe repair and condition.” Of that duty only is any breach alleged. The case proven, however, if the evidence tends to establish a cause of action upon any ground, is distinctly different. It appears that the car which was out of repair, and which was of the Delaware, Lackawanna & Western make, came from another road, known as the “Three I.” into the Santa, Fé yards at Streator in the morning of the day of the accident, and was there promptly inspected, found defective, and ordered returned to the Three I, but was permitted to remain on the Santa Fé tracks until 4 o'clock of the afternoon, when, in the rear of a number of other cars, all intended for the Three I road, it was pushed into a Y, whence, in the usual course of business, it would be taken by that company; but standing on the Y was found another car, which it was necessary to remove to a Santa Fé track, and for that purpose the plaintiff was directed to couple the moving Lackawanna car to the standing one, and in making the attempt w'as injured as stated. The car which caused the injury having been received in the usual course of business from another company, the plaintiff in error owed to its employés in respect thereto, as stated in our opinion upon the first appeal, simply “the duty of making proper inspection, and giving notice of its defects, if any were found.” To what extent the inspection in such cases should go, and what character of notice should be given, we were not then required to sav, and perhaps need not now attempt to determine with precision. If a car be accepted for transportation over the road of the receiving company,
It results from these considerations that some o*f the objections made to the court’s instructions must be sustained. It was not improper to restate in the- charge the various specifications of negligence found in the declaration. The fault of the charge in that respect was in the failure to explain upon what ground, if at all, the action could be maintained, and in telling the jury that “it was incumbent on the plaintiff * * * to establish by a preponderance of the'evidence the alleged negligence, or such parts or portions thereof as may constitute a cause of action.” The jury was thereby authorized to judge of the law as well as of the fact, and there being nothing elsewhere in the charge to explain upon what allegations of negligence there might be, and upon what there might not be, a recovery, the error cannot be regarded as cured or as immaterial.
Correcting an inaccuracy in an instruction which was condemned in our former opinion as inapplicable and misleading, the court declared the employer’s duty to be “to use ordinary and reasonable care * * * to furnish its servants or employés with reasonably safe appliances, machinery, tools, and working places, and also to exercise ordinary and reasonable care at all times to keep them in a reasonably safe condition of repair.” The general doctrine thus stated was not applicable to the case, and, it is not unlikely, was misleading or confusing, though followed immediately by a statement (which, so far as it went, was perhaps not objectionable) of the rule concerning the inspection and giving of notice of defects in foreign cars. It did not go far enough, because no distinction was made between cars accepted for use and those rejected and ordered returned. The jury may have understood that they were to determine the case both by the general and by the particular rule stated.
In respect to foreign cars found to be defective, the court also instructed that the company receiving must return or repair them, and that, “if it does not repair, then it must return the cars in a
The more important question in the case is whether the court should have directed a verdict for the defendant. It is contended that (his question is not properly presented by either the first or second specifications of error. The objection to the first specification is that it in no manner specifies the motion, or the ground thereof, nor refers to the portion of the record where it may be found. The bill of exceptions shows that upon the close of the evidence “the defendant entered its motion that the court direct the jury to find a verdict therein for the defendant.” The motion, it is evident, was not in writing, like a special request for instruction, and it is not our opinion that it needed to be. Instructions proper are for the guidance of the jury in determining a case or question which is left to their decision. The peremptory direction of a verdict withdraws a case from the jury, and, as it requires no such accuracy of expression as a request for instruction upon a proposition of law, only an informal motion is necessary; and, whether it be sustained or overruled, an assignment of error on the ruling is not governed by the provision of rule 11 (11 C. C. A. cii., 47 Fed. vi.), concerning instructions given or refused.
The second specification is upon a formal request for a. written instruction to the same effect as the motion, but, it is insisted, is not available, because instructions upon other propositions were asked at the same time. It appears by the bill of exceptions, however, that the peremptory instruction was asked first, and then the others; and we are of opinion that the right to assign error upon the refusal of the first request was not waived by the presentation of others after that had been denied. Indeed, we perceive no necessary objection to the presentation of such requests together, with
We are of opinion that the defendant was entitled to the verdict asked. As already explained, the case alleged is not proved, and the case now insisted upon is neither alleged nor proved. It is not alleged that the car which was defective was not inspected. The proof is that it was inspected, and that it was declared out of order and directed to be returned. The only approximation to a charge that there had been an insufficient or negligent inspection is in the indirect and incoherent averment already quoted, that the unsafe condition of the car “was the result of negligence on the part of the defendant, * * * by allowing the same to pass through its yards without examining the same with sufficient care to ascertain whether the same was in proper and safe condition for the use of. its employés.” But the company was required only to use reason; able care, and was not under a duty to the-plaintiff to examine with sufficient care to ascertain whether the car was in condition for acceptance and use, or whether it ought to be returned, and in the latter case to notify the employés by whom the return should be made. It is an indispensable element of the right of recovery in the case that there should have been a negligent failure to notify the plaintiff that the car was out of order, but the declaration contains no such averment, nor its equivalent. The plaintiff alleges “that he had reason to believe, and did believe, that the ears were in safe condition and in good repair, and that, acting upon such belief, and without time for an examination under his duties, but being compelled to act instantly, he used all due diligence in making such coupling to avoid injury.” But his own testimony shows that from the mouth of the inspector, in the morning, he heard the car condemned and ordered returned, that when about to make the coupling he recognized the car as the same, and that he was under no necessity to act hurriedly, or without making such examination as was necessary to insure his own safety. If he acted hastily, it was of his own choice, or in obedience to the command or urgence of fellow servants. It is also alleged “that all such defective and unsafe and dangerous condition was unknown to the said Meyers, and could not have been known to him by using ordinary and reasonable care.” But that is not equivalent to an averment that the inspector failed to give him notice or proper warning of the defective condition of the car; and on the evidence it is manifestly not true that by the exercise of even slight care the plaintiff could or would not have discovered the dangerous condition of the car before putting himself in a place of danger from it. When, in the morning, he learned that the car was out of repair, he might well have examined the couplings and brakes for himself, or have inquired into the nature of the defects, but it does not appear that he did either; and when, later, he was directed to make the coupling, it being admitted that he then knew the car to be the one which had been ordered returned because it was out of order, it cannot be true, as alleged, that he believed, or had reason to believe, that the fear was iu good condition. ' If at the time of inspection,, or at any time before the an-