59 P. 1075 | Kan. | 1900
The opinion of the court was delivered by
Complaint is made that the trial court erred in refusing to permit the plaintiff below, in rebuttal of testimony introduced by the railway company, to show that the manner in which Carrier was working about the cars while in motion was a customary method among employees of the company, of
Could the plaintiff below have avoided the effect of his own recklessness by proving that the way he attempted to do the work was customary, and that want of care was the rule among the employees of the road performing similar duties, and due caution the exception? We think not. His contributory negligence defeated his right of recovery. The question was whether he was responsible for his own injury. This responsibility could not depend on whether other employees of the road, similarly situated, engaged in negligent practices, even with 'the knowledge of the company itself. The standard of due care required of a person engaged in the hazardous business of railroading cannot be lowered by the habitual negligence of others in the same line of work. The pertinent inquiry in such cases is whether the party himself was guilty of contributory negligence, and the degree of that negligence cannot be measured by comparing it with the negligent acts of others. In Loranger v. Railway Co., 104 Mich. 80, 86, 62 N. W. 137, 139, it is said:
“ Employees cannot bind a company by the performance of such reckless acts, no matter how frequently they may do them. It is abhorrent to reason and common sense to say that it is good and safe railroading and careful conduct for a brakeman to step in front of a train moving as fast as a fast walk, and perform a service which requires him to step sideways to keep out of the way, knowing that death is almost
In the case of S. K. Rly. Co. v. Robbins, 43 Kan. 145, 23 Pac. 113, an action against a railroad company for wrongfully causing the death of a passenger conductor, the latter, in attempting to ascend a ladder at the side of a freight-car while the train was running at a rapid rate, fell therefrom and was killed. Testimony was offered to show how railroad men ought to and do ascend a ladder of a box car in such cases. The court held such testimony to be incompetent ; that to allow the practice of others to be proved would be to create a collateral issue as to the prudence of. their conduct, and unnecessarily protract the trial; that the question before the jury was whether the deceased was guilty of such negligence as to preclude a recovery, and the practice or usage of others would not tend to prove care on his part. (George v. Mobile & Ohio Railroad Co., 109 Ala. 245, 19 South. 784; Larson v. Ring, 43 Minn. 88, 44 N. W. 1078 ; Mason v. Mo. Pae. Rly. Co., 27 Kan. 83 ; C. R. I. & P. Ry. Co. v. Clark, 108 Ill. 113; G. C. & Santa Fe Ry. Co. v. Evansich, 61 Tex. 3.)
The case of Mo. Pac. Rly. v. McCally, 41 Kan 639, 21 Pac. 574, is cited by counsel for plaintiff in error as justifying the admission of the testimony excluded. In that case an inquiry was permitted as to the usual custom of brakemen in a railroad yard to ride on the pilot of the engine in the performance of their duties. The fact was disputed as to whether such act was ordinarily safe. Here a dangerous position was voluntarily chosen by Carrier, and the fact of its being dangerous was obvious and not affected by the surroundings. Nor do the cases of K. C. Ft. S. & G. Rld.
It is insisted that the court erred in the third instruction, set out in the statement, for the reason that the jury were told that before the plaintiff could recover they must find from a preponderance of the evidence that the plaintiff, in the performance of his duty as a brakeman, exercised ordinary care on his part, thus shifting the burden of proof to the plaintiff below to show a lack of contributory negligence. The error of this instruction, if not induced, was at least condoned by the act of the plaintiff below, who requested that the court direct the jury as follows :
“3. The defendant railway company is responsible for all damages sustained by reason of the negligence of its employees. If you believe from the evidence that the plaintiff was in the exercise of ordinary care in the performance of his duty, and that he was injured because of the want of ordinary care on the part of the engineer or fireman, you should find for the plaintiff.”
There was an unnecessary allegation in the petition in the case to the effect that the injury to the plaintiff in error was caused without fault or negligence on his part, and the instruction asked followed the language of that pleading. The plaintiff in error is not in a position to complain of the action of the court.
It is further insisted that the court should have withdrawn from the jury all consideration of the circumstances in which plaintiff below was placed at the time of the injury. Instruction No. 10 stated that if there was a safe as well as unsafe way for plaintiff to insert the link in the draw-head, and the jury believed from the evidence that he voluntarily and knowingly
“If, in the discharge of a dangerous duty, an employee of a railroad company voluntarily places himself in a dangerous position, unnecessarily, when there is another place that is safer that he could have chosen, and he has time to exercise his judgment, and injury occurs to him by reason of his choice, he cannot recover for such injury.” (See, also, Railroad Co. v. Tindall, 57 Kan. 719, 48 Pac. 12.)
In Bailey on Personal Injuries, volume 1, section 1121, the rule is thus stated:
“It is a familiar principle, which common sense as well as the rules of law ought to teach any one, that where an employee of a railroad knowingly selects a dangerous way when a safer one is apparent to him, and is thereby injured, he is guilty of contributory negligence.” (Louisville & Nashville Railroad Co. v. Orr, 91 Ala. 548, 8 South. 360 ; Mobile & Birmingham, Railway Co. v. Holborn, 84 Ala. 133, 4 South. 146 ; St. Louis Bolt & Iron Co. v. Brennan, 20 Ill. App. 555 ; Chicago & N. W. Ry. Co. v. Davis, 53 Fed. 61, 3 C. C. A. 429.)
The jury found that there was no necessity for inserting the link in the draw-head at the time Carrier attempted to do so; that if he had waited until the moving cars had got within close proximity to the cars standing at the depot, and had then signaled the moving train to stop, before inserting the link in the draw-head, and before making the coupling, he could have done the work without danger to himself. The jury also found that in stepping between the rails to insert the link in the moving train Carrier acted voluntarily, and furthermore, that he could have inserted the link in the draw-head in a manner less
The judgment of the court'below will be affirmed.