2 N.D. 112 | N.D. | 1891
The opinion of the court was delivered by
The .circumstances under which plaintiff was injured we think warranted the jury in finding that the defendant’s negligence was one of the proximate causes of the damage which the plaintiff suffered. He was an employe of the defendant, acting as switchman. The first important fact in the history of the accident was the stepping of the plaintiff upon the foot-board of a switch engine to ride down upon it to a flat-car standing upon a curved switch, for the purpose of aiding in coupling the engine to the car in order to transfer it to another track. The car did not belong to defendant, but was owned by the Union Tank Line Company. This fact is of no moment, however, as the defendant was bound to inspect this foreign car the same as one of its own cars. Goodrich v. Railroad Co., 116 N Y. 398, 41 Am. & Eng. R. R. Cases, 259, 22 N. E. Rep. 397; Gottlieb v. Railroad Co., 100 N. Y. 462, 24 Am. & Eng. R. R. Cases 421, 3 N. E. Rep. 344; Railroad Co. v. Kernan, 78 Tex. 294, 14 S. W. Rep. 668; Bomar v. Railroad Co., 42 La. Ann. 983, 8 S. Rep. 478; Fay v. Railroad Co., 30 Minn. 231, 11 Am. & Eng. R. R. Cases 193, 15 N. W. Rep. 241; O’Neil v. Railroad Co., 9 Fed. Rep. 337; Railroad Co. v. Barber, 44 Kan. 612, 44 Am. & Eng. R. R. Cases 523; Gutridge v. Railroad Co., 94 Mo. 468, 7 S. W. Rep. 476. It was defendant’s duty to make this inspection before incorporating the car into one of its trains. More than sufficient time had elapsed since receiving the car to enable it to perform this duty, as the accident occurred in Jamestown, in this state, a considerable distance beyond the point where the car must have first come into its possession. It had been long enough in its custody to be carried to its destination and unloaded, as it was standing empty upon the switch at the time plaintiff was injured. There is no proof that the car was ever inspected. The defect was of such a nature
Assuming that the jury were justified in finding the defendant guilty of negligence, it remains to be considered whether the plaintiff was not guilty of contributory negligence as a matter of law. The question arises not under ordinary circumstances. The defendant appears expressly to have imposed upon plaintiff duties in addition to those which the law would imply from an ordinary contract of employment of a switch-man. At the time the plaintiff entered into the service of the defendant, the latter presented to plaintiff for signature certain regulations, and plaintiff, in answer to the question printed thereon, “ Have you read and do you understand the following extract from the book of rules of the Northern Pacific Railroad Company?” replied in his own handwriting: “I have read and understand them.” So far as they are here material, these rules are as follows: “Great care must be exercised by all persons when coupling cars. Inasmuch as the coupling apparatus of cars and engines cannot be uniform in style, size or strength, and is liable to be broken, and as from various causes it is dan
Said the court in Karrer v. Railroad Co., 76 Mich. 400, 43 N. W. Rep. 370, after quoting a regulation of the defendant very similar to the one in the case at bar: “It was plaintiff’s duty to examine into the coupling arrangements of both cars before he attempted to couple them, and as they were only, a rod apart at most before he started the train bach, and as he says the defect' was visible at once to any one looking, one or two seconds would have furnished all the time needed to satisfy himself had he been acting under any one else’s'orders; but, as-he had personal direction of the engineer’s movements and could move when he pleased, the case, as he presents it, was an aggravated one of the grossest carelessness, for which he, and no one else, was responsible.” Said the court in Darracutts v. Railroad Co., 83 Va. 288, 2 S. E. Rep. 511, 514: “At all events the evidence shows that the dangerous condition of the coupling was obvious, and that the plaintiff, in violation of the rules of the company, voluntarily put himself in a position of danger, in consequence of which he was injured. Under these circumstances, in the eye of the law, he was the author of his own misfortune; that is to say his negligence, or, what is the same thing, his failure to use reasonable care and caution, was the proximate cause of the injury complained of. The action is not therefore maintainable.” • In Railroad Co. v. Smithson, 45 Mich. 212, 7 N. W. Rep. 791, there was no rule giving warning, enjoining examination and according sufficient time for that purpose; and yet it was held fatal to. recovery that the plaintiff, a brakeman, had failed to notice that there were double dead-woods on the cars he was coupling, instead of a single dead-wood on each, it being contended that it was negligence for the defendant to receive and transport cars equipped with double dead-woods. Said Judge Cooley: “If, therefore, a switchman were to declare that he had attempted to couple the double dead-woods without noticing how they differed from the cars of defendant, the conclusion would'be inevitable that he had gone heedlessly in the performance of a duty requiring great care, and that he had not allowed his eyes to inform him what was before him. * * * The
Plaintiff may not ask us to speculate whether, by the exercise of due care, he would have discovered the peril, and avoided the danger, had he made the examination which the rules of the company required. We think an observance of this reasonable rule would have saved him from injury. If he had stopped and looked, and then failed to discover the peril that menaced him, possibly a different case might have been presented. But this is doubtful. The exercise of proper care must have revealed the danger. We hold that this record discloses the fact that plaintiff’s own negligence contributed to his injury, and ■the judgment and order denying the motion for a new trial ■must therefore be reversed, and a new trial granted.