116 F. 23 | 8th Cir. | 1902
Lead Opinion
This is an action for personal injuries which was brought by Thomas Tennessee, the defendant in error, a brakeman in the employ of the Choctaw, Oklahoma & Gulf Railroad Company, against that company. The injury complained of was sustained on February 6, 1900, at Argenta, Ark., near Little Rock, at which place the company had an extensive yard for parking and making up freight trains. The plaintiff below was head breakman on a freight train of the defendant company which arrived at this yard about 10 o’clock p. m. on the night of the accident; having come from Memphis, Tenn. As it headed into the yard, the plaintiff descended from the engine, and threw, in succession, two switches to let the train in onto the lead track, and to the particular side track where it was to stand for the night. After throwing the last switch, being in front of the engine, he attempted to board the pilot of the engine for the purpose of riding down into, the lower part of the yard, to see that the switches were lined up, and to be in a convenient position to open or close them readily if they were not properly lined up. In his attempt to board the pilot, he stepped on an iron step or stirrup which was bolted to the bottom of the pilot or cowcatcher, about six or eight inches from the point thereof, when, as he claimed, the stirrup gave way, and his foot went down between the ties, which at that point
One of the errors assigned is that the" trial court refused to withdraw the case from the jury, as it was requested to do; and, as this contention presents the principal question in the case, we are compelled to state the substance of the testimony which was adduced at the trial. The plaintiff’s witnesses, including the plaintiff, who was one of the principal witnesses, testified to the following effect: That the proper position for a head brakeman on a freight train, when it is running into yards like the one at Argenta, is on the front of the engine, to enable him to line up the switches promptly, as they are encountered, and prevent derailments; that the pilots of freight engines are provided with footplates or stirrups, on which it is customary for the head brakeman to stand for that purpose; that the engine which he attempted to board on the occasion of the accident was provided with such a footplate; that he had never received instructions not to ride on the front end of the engine, in the manner described, but, on the contrary, had often been commanded by conductors to so ride; that the only rule on the subject which had been prescribed by the defendant company that he ever saw was a rule warning its employes not to jump on or off an engine when it was running “at a high rate of speed”; that on the occasion of the accident the engine was moving very slowly,—not more than four miles an hour; and that, when the plaintiff attempted to board the engine and was hurt, he was discharging his duties in the proper and customary manner, as all other employés under like circumstances were in the habit of discharging them. With reference to the condition of the stirrup on the pilot, the evidence elicited from the plaintiff was that “it gave way or went down” when he stepped on it, and that his foot was wedged in under one of the ties (the space between the ties not being filled in) so that he could not extricate it in time to prevent being run over; while another witness testified that this stirrup on the pilot was in a defective condition, being so loose three or four days prior to the accident; that he had at that time warned a fellow brakeman not to step on it, because of the condition it was then in. The plaintiff, testifying in his own favor, denied having any knowledge that the stirrup was out of repair and defective before the accident occurred. The testimony relating to the condition of the yard tracks and the plaintiff’s knowledge of their condition was to the following effect: The yard had been constructed during the months of October, November, and December, 1899, and was of large dimensions; consisting of 10 or 12 long tracks, laid side by side, which branched off from a lead track surrounding the yard. The defendant company began to use this
Such being the character of the evidence' that was adduced on the trial, we think that the case could not have been lawfully withdrawn from the jury without usurping its functions. The testimony manifestly tended to show that the stirrup in question had been in a defective condition for some days prior to' the accident, and that the defect in the stirrup was a proximate cause of the injury. Moreover, in view of its location and the use that was made of it by brakemen, the jury were doubtless warranted in finding that, in the exercise of ordinary care, the defect should have been discovered by the defendant and repaired prior to the accident. We also think that because of the location of the track where the accident occurred, and the use that was made of it for switching purposes and to assemble trains, it was the province of the jury to decide whether it was in a fit condition for the uses to which it was devoted, and whether the defendant company was chargeable with any want of ordinary care or diligence in that respect. These were questions, as we think, respecting which reasonable men might entertain different opinions; and, such being the fact, it was the province of the jury to determine them.
Counsel urge, however, tha.t the plaintiff ought not to have made the attempt to board the engine while it was in motion, and that, because he did so, the trial court should have declared, as a matter of law, that he was guilty of contributory negligence, and could not recover. But this contention ignores important evidence, which this
Counsel for the defendant company have called our attention to a number of well-known cases in support of their contention that the plaintiff was guilty of contributory negligence in attempting to get on the pilot, with a view of riding thereon, when the train was moving; but we think that the case in hand is distinguishable therefrom by the facts and circumstances to which we have alluded, and that, if the plaintiff might have been found guilty of contributory negligence, it was in this instance the province of the jury, rather than the duty of the court, to make that finding. We conclude, therefore, that no error was committed by the trial court in submitting the case to the jury.
The charge of the lower court is criticised because in one or two places the language which was employed, when considered by itself, might be understood to mean that a master is bound at all events to furnish machinery, etc., which is reasonably safe, whereas the law is that he is only required to exercise reasonable and ordinary diligence in that behalf; the duty not being imperative or absolute. For example, the court said in one place:
“The duty which a railroad company * * * owes to its employés is to furnish machinery in a reasonably safe condition, and a reasonably safe place for the servant to work.”
It neglected to say that it is the duty of a railroad company to exercise reasonable care in the matter of providing machinery. Whatever error there may have been in these respects was cured, we think, by other portions of the charge,—particularly by the concluding para
Complaint is also made because the lower court charged the jury, in substance, that in large railroad yards, where there is much traffic and many employés, a railroad company is required to exercise more diligence and keep its tracks in better condition than it would out in the country; but we have been unable to- discover any material error in this instruction. The court obviously meant that in railroad yards, where trains are made up and much switching and coupling are done, a railroad company ought to exercise greater care in keeping the space between its ties filled up, and the ground level and free from obstructions or pitfalls, than in other places along its line, where there is less occasion to make couplings. As thus understood,—and the instruction is not fairly susceptible of a different interpretation, as applied to the facts of this case,—it was correct.
In another part of the charge the lower court said, concerning the plaintiff: “If he was careless himself,—if the want of attention to his own safety contributed in any considerable degree to his injury,—the railroad company is not liable;” and this statement of the law forms the subject-matter of another exception, which would have been tenable were it not for the fact that the court in the same connection specified the particular acts which would amount to contributory negligence and preclude the plaintiff from recovering; telling the jury, in substance, that an employé cannot recklessly and unnecessarily expose himself to danger, and then recover for an injury to whicli said exposure contributed; that “if the plaintiff had no business to-
In the course of the trial a witness for the plaintiff, who had testified that the step on the pilot was loose three or four days before the accident, and that he had warned one of his fellow brakemen not to step on it, was asked whether he saw the step the morning after the .accident; and he replied that he went down the next morning and looked at the engine, and the piece had been removed. The defendant •company objected to the latter part of this answer on the general ground that it was “incompetent, irrelevant, and immaterial to any issue in the case,” and an exception was saved. It is manifest, we think, that this question was not asked by counsel for the plaintiff with a view of showing that the alleged defect was repaired by the master after the accident had occurred, which class of testimony is generally inadmissible. Counsel obviously had no such purpose in view. The witness was asked if he saw the step the morning after the accident, evidently with a view of inquiring further what condition it was then in; and he replied casually that the morning after the accident it had been removed, which may have meant that it was torn off when the plaintiff stepped on it, and was not on the pilot the next morning. Besides, the court instructed the jury that if any evidence had been introduced showing that subsequent to the accident the defendant repaired the step on the pilot, or filled in the spaces between the ties, such testimony should not be considered by the jury .as any evidence that such action should have been taken before the accident occurred. It is clear, therefore, that the exception last specified is of no moment, and should be disregarded.
Several other exceptions were taken during the trial, and are embraced in the assignment of errors, all of which have been considered, and found to be without merit. Most of these exceptions have not Teen argued by counsel, but our attention has simply been directed to them in the brief. The case seems to have been fairly and thoroughly tried. The instructions, in all material respects, were as favorable to the defendant as could have been desired, except that the court declined to withdraw the case from the jury, holding that there were issues of fact in the case which ought to be determined by the jury; and in this respect its action was right.
The judgment below is accordingly affirmed.
Dissenting Opinion
(dissenting). The alleged causes of action in this case were the failure of the railroad company to exercise ordinary care to properly ballast its tracks, and to inspect and
(1) “What it owes to its employes is to furnish machinery in a reasonably safe condition,' and a reasonably safe place for the servant to work in the discharge of his duties. A failure to do so makes the company liable in damages for any injuries sustained by the servant while in the discharge of his duties, if the servant’s own acts or negligence do not contribute to the accident.”
(2) “Now, as to the condition of the track where the accident occurred; if the railroad company failed to keep the track in a reasonably safe condition, and by reason of that failure the plaintiff, by no negligence of his own, sustained the injury complained of, then it is liable.”
(3) “I want to state this: It is the duty of a railroad corporation, or any other employer or person, especially where there is machinery, as I told you at the start, to furnish reasonably safe appliances to its employes; otherwise it is liable.”
Here were three erroneous declarations of the law controlling the rights of the parties in this litigation. They were not trivial and inadvertent mistakes in the use of words or terms, but solemn and thoughtful declarations of the rule of law which the court clearly intended should control, and which doubtless did govern, the -jury in its deliberations. That they were erroneous, the following authorities demonstrate: Railroad Co. v. Holloway (C. C. A.) 114 Fed. 458; Railway Co. v. Jarvi, 3 C. C. A. 433, 435, 436, 53 Fed. 65, 67, 68; Gowen v. Harley, 6 C. C. A. 190, 197, 56 Fed. 973, 980; Railway Co. v. Linney, 7 C. C. A. 656, 660, 59 Fed. 45, 48; Railroad Co. v. Needham, 16 C. C. A. 457, 459, 69 Fed. 823, 825; Railroad Co. v. Johnson, 27 C. C. A. 367, 368, 81 Fed. 679, 680; Railroad Co. v. Myers, 11 C. C. A. 439, 63 Fed. 793; Id., 22 C. C. A. 269, 76 Fed. 443. The presumption is that error produces prejudice. It is only when it appears so clear as to be beyond doubt that the error challenged did not prejudice, and could not have prejudiced, the complaining party, that the rule that error without prejudice is no ground for reversal is applicable. Railroad Co. v. Holloway (C. C. A.) 114 Fed. 458; Association v. Shryock, 20 C. C. A. 3, 11, 73 Fed. 774, 781; Railroad Co. v. McClurg, 8 C. C. A. 322, 325, 326, 59 Fed. 860, 863; Deery v. Cray, 5 Wall. 795, 807, 808, 18 L. Ed. 653; Smith v. Shoemaker, 17 Wall. 630, 639, 21 L. Ed. 717; Moores v. Bank, 104 U. S. 625, 630, 26 L. Ed. 870; Gilmer v. Higley, 110 U. S. 47, 50, 3 Sup. Ct. 471, 28 R. Ed. 62; Railroad Co. v. O’Brien, 119 U. S. 99, 103, 7 Sup. Ct. 118, 30 L. Ed. 299; Mexia v. Oliver, 148 U. S. 664, 673, 13 Sup. Ct. 754, 37 L. Ed. 602; Railroad Co. v. O’Reilly, 158 U. S. 334, 337, 15 Sup. Ct. 830, 39 L. Ed. 1006; Peck v. Heurich, 167 U. S. 624, 629, 17 Sup. Ct. 927, 42 L. Ed. 302.
It is true that, while the court gave the erroneous rule of law to the jury three times at three different places in its charge, it also gave
There was another error in the charge. It consisted in the instruction that the negligence of the plaintiff was a bar to his recovery if that negligence contributed in any considerable degree to his injury, when the law was that it constituted a bar if it contributed in any degree. On account of these palpable errors in the charge of the court, the judgment below should be reversed, and a new trial should be directed.