169 F. 372 | 7th Cir. | 1909
(after stating the facts as above). In Wabash R. Co. v. U. S. and Elgin, etc., R. Co. v. U. S. (herewith decided) 168 Fed. 1, we have expressed our judgment that the safety appliance acts are constitutional
Was the car movement in question unlawful? From the acts of plaintiff and of the car repairer, Tony, in bringing new parts to the place- where the defective car stood, the jury were justified in finding that it was reasonably practicable to make the repairs without
There was evidence to support a finding that it was within the scope of plaintiff’s duty to endeavor to repair the coupler so that the train might be put together and the crew proceed with their work of distributing the cars. According to this view, plaintiff’s act in substituting a new knuckle for the broken one in preparation for a coupling by impact was quite 'similar to Voelker’s (Chicago, M. & St. P. R. Co. v. Voelker, 129 Fed. 522, 65 C. C. A. 226, 70 L. R. A. 264), in adjusting a defective coupler so that it would couple automatically. But we find nothing in the statute that limits the classes of persons to whom the carrier shall be responsible for damages that result directly and immediately from its illegal doings.
Section 8 provides that:
“Any employé of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned.”
The statute would be. honored only in its breach if the same facts that would defeat the employé under the common-law rule of assumed risk can be used to defeat him under the name of contributory negligence. Schlemmer v. Buffalo, etc., R. Co., 205 U. S. 1, 27 Sup. Ct. 407, 51 L. Ed. 681. So plaintiff’s knowledge of the physical conditions cannot be charged against him in determining the quality of his conduct in going and being between the cars. And, since he could not be crushed between quiescent cars, his knowledge that at every instant of time there was the possibility of the cars being moved by the act or direction of other employés is likewise irrelevant. The inquiry in our opinion is limited to whether other facts, independent of his knowledge of conditions and possibilities as aforesaid, establish plaintiff’s negligence so conclusively that it was error to submit the matter to the jury as a question of fact. Plaintiff observed the conductor and rear brakeman talking together at the opening between the cars. When he went to the place, he saw the broken knuckle. The jury might well have inferred from this that plaintiff believed and had
. Upon the carrier the statute lays the duty of seeing to it that no cars are hauled or used on its line that are not equipped according to the statutory requirements. This direct statutory duty cannot be evaded by assignment or otherwise. Therefore the act of the conductor who had charge of the train in deciding what should be done with the defective car was the act of defendant. As to the negligence of the engineer, it is immaterial whether it be taken as that of defendant or of a fellow servant of plaintiff, for defendant cannot be exempted from liability for its own negligence by reason of the concurrence of another’s. Chicago, M. & St. P. R. Co. v. Ross, 112 U.S. 377, 5 Sup. Ct. 184, 28 L. Ed. 787, Monmouth, M. & M. Co. v. Erling, 148 Ill. 533, 36 N. E. 117, 39 Am. St. Rep. 187; So. Pac. Co. v. Allen (Tex. Civ. App.) 106 S. W. 443.
That the instructions respecting fellow servants and the nature of the duty imposed by the statute are deemed by us to be correct sufficiently appears from our consideration of the case upon the evidence. Defendant’s other requests need not be particularly noticed, for on comparison of them with the charge as given we find that they were substantially covered.
So far as we can determine from the printed page, no just criticism can be made of counsel’s offers to prove or of his arguments in support thereof; and we accept the action of the trial judge in denying a new trial as proof that there was no impropriety in the manner in which the offers were presented.
The judgment is affirmed.