Cunningham v. Chicago, M. & St. P. R. Co.

17 F. 882 | U.S. Circuit Court for the District of Minnesota | 1883

Mtjyleb, Justice,

(charging jury.) The case before you presents two questions of fact to consider. Tlie first is, whether the railroad company exercised due care and diligence in regard to the character of this engine ou which the accident occurred. The main question in that respect, I think, turns upon whether there was negligence— carelessness—in starting that engine out, (it having been originally not a very good one,) with the want of this rail that was torn off the night before. It is tlie duty of these railroad companies, both with regard to passengers and to their own employes, to take due care, to exercise due diligence, to prevent injuries, and injuries of this character; and it is their business to see to it that the usual appliances for sa fety and security of life shall bo furnished in the places and at the times that these persons, whether passengers or servants, have to be employed in tlioir service. I don’t know that you will find much difficulty on that branch of the subject. The other branch of the subject is that if you find that the company was negligent in regard to the character of this engine,—that it might have exercised and ought to have exercised more care in tlie kind of engine that was used,—then you will come to the question, did the plaintiff exorcise proper care and diligence? Tor, although the negligence of the railroad company may be a cause, and probably a principal cause, of this man’s loss of life, yet If he was carpless himself, if his want of attention to his own safety contributed in any sensible degree to bis death, the railroad company is not responsible. And that, as you will see at once, arises from a philosophical examination of the necessities of the case. These railroad companies furnish a great amount of-operative force, all of which is more or less dangerous, and most of which can be subjected and used in a manner which is dangerous to the personal safety and life of the individual, and their operations require that they shall use powerful instrumentalities. You cannot move these cars, you cannot move this immense machinery; you cannot use steam any more than you can use powder, without there being elements of danger in it; you cannot carry these great loads of freight, or transport the produce of Minnesota to the Atlantic ocean, and on its way to Europe, without the use and exercise of a power which, in itself, is naturally dangerous. These railroads do a great deal of good. The good that they do is largely in excess of the ill they bring. They have become a necessity of human life, and modern commerce, and business, and they must employ these dangerous and powerful agencies. The law requires of them to be very careful how they employ these-dangerous agencies; it requires them to exercise constant vigilance and care that all their instrumentalities shall be of the proper and best quality; that in the use- of them guards shall be taken for the security of limb and person by those who are engaged, who are transported, by them, whether as passengers or employes.

Now, that is the power employed by the railroad, and'that is the duty of the railroad; but, for the very reason that the instrumentalities employed by these railroads must be powerful, must exercise very great force, must bring into play numerous elements that are dangerous to human life, it is necessary that those who deal with them should themselves exercise proper caution. A man has no right, because a fire is built in his neighborhood, to put his finger or his clothes into it and burn them, and then say, “I may sue and recover damages.” A.man has no right to thrust himself forward into a dangerous position and say, “If I am killed somebody will get damages for it;” or, “If I am hurt, I shay, go to the hospital and be taken care of and recover damages.” He has got to take care of himself, as well as the railroad has to take care of their duties and their employes. These obligations are mutual, and it is the law, and it is your duty to require it,, as the law, that if a man voluntarily puts himself into a dangerous position,—does so unnecessarily, when there are other positions in connection with the discharge of his'duty which are safe, which he can be placed in,—he cannot recover of the railroad company for damages for that injury to which he-has contributed by his own negligence. That is the law. It is your duty to regard it, and you have no right to say that because this railroad company is a great and powerful instrumentality it must pay for this man’s life, whether.he was negligent or careless, or not.

Now, whether he was negligent or careless is for you to say. And it does not depend upon the opinion of any of these witnesses altogether. Inasmuch as some of them have had large experience and have been much used to these things, and can see what perhaps you cannot see, their opinion is worth something, but is not necessarily to control you. You are to use the common sense for which you were summoned here as jurors, for yourselves, and say if this man, getting right in front of that machine, which was progressing towards him,— with a capacity to. ruin him, to destroy him, to run over him, to kill him,—whether he acted carefully in stepping up upon that eight-inch or a foot-wide board, when, if he fell or slipped or lost his grip, or if there was no grip to take, he went under and was killed, inevitably, whether he exercised prudence when he could have acomplished the same end by getting on at the side, or, in the slow progress the engine was making, by getting on in the rear with perfect safety and jierfect immunity, from endangering his life, at all events, whatever else might have happened to him; and if you believe that he did, carelessly and without due regard for his own safety, get upon this engine in a dangerous position, where it was much more probable that he would have been injured than by taking a safer course,—if he did this of his own promptings, and not because anybody told him to do it, then he is not entitled to recover any verdict at your hands.

That is the law of this case, gentlemen. You may take it.

The jury brought in a verdict for the plaintiff for $1,000.

Before the jury were discharged defendant’s counsel moved for a new trial on the ground that the verdict was contrary to the law and the evidence, and asked that the motion he then heard.

The Court. I will hear the other side.

Mr. Erwin. I would like to refer your honor to some authorities on the subject of contributory negligence.

'I7te Court. Yon may read them to the next judge who tries the case. I set this verdict aside. It was as clear a case of contributory negligence as has ever come under my observation, and it is with great reluctance that I refused to instruct the jury to find for the defendant. It is not only a case of clear negligence on the part of the deceased, but a case of stupid negligence on his part,,