160 F. 826 | 8th Cir. | 1908
This was an action by Matthew Donovan against the Chicago, Milwaukee & St. Paul Railway Company to recover for personal injuries sustained by him in a collision with a freight car at a recognized grade crossing in the company's yard in the western suburbs of Chicago. The yard contained U) or more parallel tracks extending east and west across a public street, and numbered consecutively from north to south. One of the company’s freight trains, upon which Donovan was head brakeman, entered the yard in the early morning, while it was yet dark, and was backed in on track 6. To make the street clear for travel, the train was cut or parted at the crossing, the caboose and one or two cars being put on the east side and the other cars on the west side. The movement of the train was then at an end, but Donovan, before quitting the yard, was required to report at the caboose, which was 1,500 to 1,700 feet from his post at the head of the train. He was an experienced railroad operative, but had not been in that yard before. Whether there was a reasonably safe route to the caboose on tile south side of the train, and whether it was reasonably open to him to walk along the north side between the train and track 5, are matters in respect of which the record is silent, save as he testified that some switching in the west or top end of the yard “blocked us so I had to walk down between tracks 2 and 3” on the north side. At all events, he took the north side, crossed over trades 5, 4, and 3, then walked cast between tacks 3 and 2 to the street, and then turned south along the street toward track 6 upon which the caboose was standing. The center of the street was planked, and he followed the planking. On track 4, from two to five car lengths west of the street, was an engine with a bright headlight facing the street, but that part of the yard was not otherwise
“There was no signal either by whistle or lantern or in any other way, or any .notice given of that ear going over the street. There never is. There was no watchman there at that time. * * * The engineer is watching towards the stakeholder back of the engine. * * * He is looking for a sign to know how far he is going to kick the car. His attention is towards the rear. * * * This work we were doing there at this time was done in the usual way, and we have done it that way all the time I have worked there. This stake that is used there is about six feet long. The car does not extend in front of the engine far enough so that the flare of the headlight would strike the corner or the head end of it. The front end of the ear would be back of the flare of the headlight.”
And another member of the crew testified:
“A man standing on that crossing looking towards the engine with its headlight burning could not see the car. * * * This car that was being staked would make a noise running down, but wouldn’t overcome the- noise-of the engine. The engine would make a greater noise.”
Donovan had never met with a practice of staking cars over a public street without giving some reasonable warning to persons who might be passing therein, did not know that such was the practice in that yard, and did not know, or have any reason to believe, that the-engine on track 4 was engaged in staking cars. Thinking that the engine might be drawing a long train which would obstruct his approach to the caboose, unless he crossed to the other side, and believing that he could safely take chances on crossing in front of the engine, he hastened along and passed over track 4 in safety, but when he stepped on track 5 he was struck and injured by the car which was being staked, then moving about 12 miles an hour. After he passed in front of the engine, one of the staking crew observed his perilous situation and called out a warning, but it came too late to be of any avail.
Such was the case made by the evidence, when the conflicts therein- and in the inferences to be reasonably drawn from different' parts of
At the conclusion of the evidence the defendant requested the court to direct a verdict in its favor on the grounds, first, that there was no evidence of actionable negligence on its part, and, second, that the evidence conclusively established contributory negligence on the part of the plaintiff. The request was denied, and the court, in the course of its charge, said to the jury, in substance, that it was the duty of the defendant, when about to stake the car over the street, to exercise ordinary care for the protection of persons who might be passing therein by giving some reasonable warning of the approach of the car; that the plaintiff, while passing along the street in going from one part of the yard to another, was as much entitled to this measure of protection as other travelers; and that, if his injuries were caused by a failure on the part of the defendant to exercise ordinary care by giving some reasonable warning of the approach of the car, and there was no contributory negligence on his part, he was entitled to recover. 'The jury returned a verdict for the plaintiff, judgment was entered thereon, and the defendant now assigns error upon the refusal of its request for a directed verdict, and upon that portion of the charge which declared that the plaintiff, while so using the street, was entitled to the same measure of protection, in the way of a reasonable warning, as other travelers.
At the outset it must be conceded that if the plaintiff, after seeing the engine, observing its proximity to the street, and appreciating that it was about to move toward the crossing, or was doing so, had been injured in attempting to pass in front of it, he would not be entitled to recover. And it must be conceded, also, that if the exercise of ordinary care on his part as he advanced along the street would have necessarily disclosed to him the presence and movement of the car, as was the situation in Chicago, Milwaukee & St. Paul Railway Co. v. Clarkson, 147 Fed. 403, 77 C. C. A. 575, and he had then been injured in attempting to pass in front of it, he would not be entitled to recover. In either event lie would have been guilty of negligence directly contributing to his injuries. But neither concession covers this case. The plaintiff was not injured in attempting to pass in front of the engine; he could not see or hear the car which was advancing on the next track; and he did not otherwise have reason to believe that the engine was slaking a car at the time. Or, stating the whole of it, he successfully avoided the only danger which was discoverable by a reasonable use of his senses, and sustained injuries from a danger which was not thus discoverable, and which he did not otherwise have reason to expect. Plainly, therefore, the evidence did not conclusively establish contributory negligence on his part. Chicago, Rock Island & Pacific R. Co. v. Sharp, 63 Fed. 532, 11 C. C. A. 337; Texas & Pacific Ry. Co. v. Gentry, 163 U. S. 353, 16 Sup. Ct. 1104, 41 L. Ed. 186.
It is next contended that, as to the plaintiff, the failure to give a reasonable warning was solely the negligence of his fellow servants who were staking the car. But the contention is not well taken. The failure to give such a warning was not peculiar to that occasion, or merely a casual neglect of duty on the part of those who were staking the car,
It is further contended that, as it was the recognized and long-established practice in that yard to stake cars over the street without giving some reasonable warning to persons passing therein, the plaintiff’s injuries resulted from an assumed risk. But this contention is also untenable. The rule that a servant assumes all the ordinary risks of the service in which he engages presupposes that the master will perform all the duties cast upon him for the servant’s protection, and therefore embraces such risks as are incident to the service where those duties are performed, and not such as arise out of the master’s negligence. The latter are deemed extraordinary risks, and, under a recognized exception to the rule, are assumed by the servant, if the master's negligence is actually known to him, or is so plainly observable that he may he reasonably presumed to know of it, and he then voluntarily enters or remains in the service. Texas & Pacific Ry. Co. v. Archibald, 170 U. S. 665, 672, 18 Sup. Ct. 777, 42 L. Ed. 1188; Choctaw, O. & G. R. Co. v. McDade, 191 U. S. 64, 68, 24 Sup. Ct. 24, 48 L. Ed. 96; Texas & Pacific Ry. Co. v. Swearingen, 196 U. S. 51, 62, 25 Sup. Ct. 164, 49 L. Ed. 382. When the rule and its exception are applied to the case made by the evidence, as before recited, it is plain that the risk which resulted in the plaintiff’s injuries was not assumed as an ordinary incident of the service, because it arose out of the defendant’s negligence, and was not assumed as an extraordinary risk, because that negligence w?is neither known to the plaintiff nor plainly observable by him during the short time intervening between his entrance into the yard and the collision.
We think the motion for a directed verdict was rightly denied.
As the exception taken to a portion of the court’s charge, before mentioned, merely presents in another form the contention that the plaintiff was not one of those to whom the defendant owed the duty of giving some reasonable warning of the approach of the car, it is sufficiently disposed of by what has already been said on that subject.
The judgment of the Circuit Court is affirmed.