99 P. 224 | Kan. | 1908
The opinion of the court was delivered by
The railway company contends that, since it has at great expense complied with the act of congress by placing upon its cars couplers which couple automatically by impact, thereby enabling its employees to couple and uncouple cars without encountering the danger of going between them, it should not be held liable for injuries sustained by an employee who voluntarily and unnecessarily goes between the cars to do the coupling instead of using the safe method which has been provided for that purpose, as the deceased did in this case.
The defendant in error contends that, notwithstanding the safe coupling appliances furnished, it is more expeditious and convenient to make a flying switch, such as was being made by the deceased, when a brakeman is on the brake-beam between the cars, as the deceased was located; and for this reason it had long been the custom among the employees of the defendant railway company to make couplings in that manner. It is further contended that this custom was known to, and acquiesced in by, the company, and it encouraged such practice by placing iron handholds on its cars so as to make it more convenient to handle the cars in that manner than by the use of the safer appliance. It is urged that the acquiescence of the defendant in this custom has been such that employees were justified in regarding it as an approved method of doing such work, and the railroad company thereby became bound to keep its cars supplied with appliances suitable for such practice, and a failure to do so was negligence. Upon this theory it is insisted that' the failure to have the car in question furnished with a
Other matters are discussed, but the foregoing statement presents the real questions involved in the controversy, and none other need be considered.
The deceased in this case was not directed to couple and uncouple cars by any particular method. The car which he was required to couple, on the occasion when he received the injury of which complaint is made, was furnished with an automatic coupler, as provided by act of congress. It was designed to protect brakemen from the very danger which the deceased encountered and in which he lost his life. He used the brake-beam method, not because it was the only or the best means at hand, nor because directed by his master to do the work in that manner; but he adopted it with full knowledge of the danger involved, because it was more convenient for him than the safe way required by law and provided for by the railway company. It is not claimed that the company or its officers directed or advised its employees to make flying switches in this manner; they did it voluntarily and of their own choice.
We are unable to attach much importance to the alleged knowledge and acquiescence of the company. The most that can- be said of it is that some of the company’s officers knew that such switches were being made and the practice was not prohibited. It is not claimed that the company directed, advised or in any affirmative manner approved of this method of coupling cars. It was simply known' and tolerated. The employees adopted this method of their own choice, when it suited their convenience. In the view we have taken of the facts the case must be decided upon the particular transaction, and the long usage or custom of the employees in making couplings or flying switches at other times and under other circumstances can not be regarded as controlling. The deceased undertook to handle a car which was provided with a coupler by the
“It is so dangerous for the employees of railroad companies to go between the ends pf cars to couple or to uncouple them that congress passed an act on March 2, 1893, which made it the duty of common carriers to equip all their cars engaged in moving interstate traffic with couplers which can be uncoupled ‘without the necessity of men going between the ends of the cars’ (27 Stat. 531, c. 196, 3 U. S. Comp. St. p. 3174), and the legislatures of many of the states have enacted laws of a similar nature to regulate carriers within their respective borders. In this way the duty was imposed upon common carriers by the law to so equip their cars that they could be uncoupled without requiring their servants to go between the ends of the cars. The devolution of this duty upon the carriers necessarily imposed upon their servants the correlative*704 duty of using the equipment thus furnished to them, and of refraining from going between the ends of the cars to couple or uncouple them unless compelled to do so by necessity. Under this legislation the breach of either of these duties became a failure to exercise ordinary care, and constituted actionable negligence. The two cars which the plaintiff sought to uncouple were supplied with mechanical devices for separating them without requiring the employees of t'he railroad company to go between the ends of the cars. These devices were not defective in construction or repair. There were two of them, either one of which could ordinarily enable the servant to uncouple the two cars. One of them had its lever on the east side of the train, where the plaintiff was at work, and could be operated from that station. The other had its lever upon the west side of the train, and could be utilized only from that side. The plaintiff first endeavored to uncouple the cars by the use of the device on the east side of the train, while the string of cars was stationary. When the train was drawn tight, so that there was no slack between the cars, or, as the witnesses expressed it, ‘when the slack was tight/ the cars could not be uncoupled, either with or without the use of the levers. When the plaintiff first attempted to separate the cars the slack was tight, and consequently he could not pull the pin by the use of the lever. The engine then pushed the cars to the south, and as they moved along the plaintiff attempted several times to pull the pin by means of the lever upon which he still kept his hand, and failed. He then stepped in between, the ends of the cars while they were moving at the rate of between two and three miles* an hour, and tried to uncouple them by seizing the chain above the pin with his hands and raising them. The act of placing himself between the ends of the cars to uncouple them without first endeavoring to do so by the use of the lever on the opposite side was an act of negligence, because the use of that lever was a less dangerous method of separating the cars. Where there is a comparatively safe and a more dangerous way known to a servant by means of which he may discharge his duty, it is a want of ordinary care for him to select and use the more dangerous method. Morris v. Duluth S. S. & A. Ry. Co., 108 Fed. 747, 749, 47 C. C. A. 661, 664; Gowen v. Harley, 56 Fed. 973, 983, 6 C. C. A. 190, 200; Coal Co. v. Reid, 85*705 Fed. 914, 29 C. C. A. 475; McCain v. Railroad Co., 76 Fed. 125, 126, 22 C. C. A. 99, 101; Russell v. Tillotson, 140 Mass. 201, 4 N. E. 231; Gleason v. Railway Co., 73 Fed. 647, 19 C. C. A. 636; Cunningham v. Railway Co. (C. C.), 17 Fed. 882; English v. Railway Co. (C. C.), 24 Fed. 906. Not only this, but if the plaintiff had adopted the less dangerous method, if he had proceeded to the other side of the train and had uncoupled the cars by the use of the west lever, he would not have walked in the space between the rails where his foot was caught, and he would not have been injured. Even if he had first vainly tried to operate that lever, he would not have walked over the space where he was hurt, and he would have escaped injury. So that there seems to be no escape for a reasonable man, who considers impartially these facts, from the conclusion that the plaintiff was guilty of negligence in refusing to use the lever on the west side of the train and in entering and walking between the moving cars for the purpose of uncoupling them, nor from the conclusion that this negligence directly contributed to his injury.
“Counsel for the plaintiff, however, ably and persuasively urge several reasons why, in their opinion, the negligence off the plaintiff was not fatal to his recovery hére. They call attention to the testimony of several witnesses to the effect that it was the custom or habit of the servants of the company to ignore the lever •on the opposite side of the train, and to step in between the cars when they were moving, and uncouple them with their hands, when the lever on their side of the train would not produce this effect, and they insist that it was not negligence for the plaintiff to follow the ordinary course pursued by his associate operators in cases of this character. But ‘if a man exposes himself to a risk Unnecessarily he is guilty of negligence, although it be shown that other persons have done the •same thing and escaped unhurt. The inherent quality of an act is not changed, whether done by one or many.’ Dawson v. Chicago, R. I. & P. R. Co., 114 Fed. 870, 882, 52 C. C. A. 286, 288. The danger of entering and walking between the moving cars was so imminent and •obvious that no custom to do so unnecessarily could ■deprive the act of its inherently negligent character.” (Page 533.)
It is a well-established rule of law that where two
“When an employee has his choice of two ways in which to perform a duty, the one safe, though inconvenient, and the other dangerous, he is bound to select the safe method, and if, instead of so doing, he elects to pursue the dangerous way, and is in consequence injured, he is guilty of such negligence as will bar an action for damages against the master. The principie here announced is recognized law in the state of Alabama.” (Syllabus.)
In the case of Carrier v. Railway Co., 61 Kan. 447, 59 Pac. 1075, the syllabus reads:
“if the plaintiff voluntarily and knowingly adopted an unsafe, instead of a safe, way of doing the work mentioned, and thereby received injuries, he can not recover therefor.”
The conduct of the deceased as shown in this case was grossly negligent. He might have done this work safely. He chose to adopt a recklessly dangerous method of performance. The railway company was in no way responsible for the fatal consequences, and should not be held liable therefor. The mere fact that some of its officers knew that at other times and under other circumstances its employees had used the same method, and such method had neither been approved nor prohibited by the company, does not affect its liability.
The judgment of the district court is reversed, with direction to enter judgment for the defendant.
