104 F. 745 | 4th Cir. | 1900
Lead Opinion
Plaintiffs’ intestate lost his life on March 30, 1895, in the nighttime. The accident occurred on the Maritime spur track of the Thacker coal mines, near Thacker station, at a point where coal is loaded into the cars of the Norfolk & Western Railroad by dumping the coal from tipples. This method of loading coal is necessarily a dirty, grimy operation, and the air at such points in the coal region is filled with coal dust, which settles over all obj'ects. A locomotive with one coal car attached was being backed up the spur track to be coupled to eighteen cars loaded with coal, standing on the track, coupled together. The conductor directed Lusk, the decedent, a brakeman who had been in the service of the defendants for some months, to let off the
Four charges of negligence are made, as follows: In providing a car with an impaired, rotten, and defective deadwood or bumper; in failing to provide sufficient deadwood or bumpers on one side of one of the cars; in that the end sills of the car to which said bumpers had been attached were old, rotten, split, and otherwise
The argument was almost exclusively of the facts, and it is a source of regret that plaintiff’s counsel have not favored this court with a statement from their standpoint. A clear statement of facts by
Trial by jury of questions of fact is the best method that has been conceived or suggested. It is the glory and boast of our system of jurisprudence. But the questions submitted to a jury should be questions of fact such as the jury can understand. The courts are constantly drawing the distinction and laying down the rule of demarkation. If every question raised is to be submitted to the jury, as frequently contended and occasionally decided, the trial judge becomes a useless appendage, and the idea of selecting these officers from a profession learned in law, experienced in solving controversies, who have devoted the best years of their life to study, and controlling their natural passions and prejudices while serving the interests of others, loses its force and effect. A layman could serve as well. The trial judges constitute the conservative element in the system, in whom the people, the source of all power, have, and must have, confidence. YTested with great powers, appeals and reviews by higher courts are checks and safeguards qgahist error, inistake, and, what is very rare, an abuse of authority. “Trial by jury, in its primary and usual sense of the term, at common law and in the American constitutions, is not merely a trial by a jury of twelve men before an officer with authority to cause them to he summoned and empowered to administer oaths to them and to a constable in charge; hut it is a trial by a jury of twelve men in the presence and under the superintendence of a judge, empowered to instruct them on the law, and to advise them on the facts, and (except on acquittal on a criminal charge) to set aside their verdict, if, in his opinion, it is against the law or the evidence. This proposition has been so generally admitted and so seldom contested that there has been little occasion for its
The exception presents the very important question when is it the duty of the trial judge to direct a verdict, and the more specific question, did the trial judge err, in the case at bar, in so directing a verdict? The rule is thus stated by Chief Justice Fuller in Treat Mfg. Co. v. Standard Steel & Iron Co., 157 U. S. 675, 15 Sup. Ct. 718, 39 L. Ed. 854:
“But it is well settled that where the trial judge is satisfied upon the evidence that the plaintiff is not entitled to recover, and that a verdict, if rendered for plaintiff, must be set aside, the court may instruct the jury to find for the defendant.”
In Pleasants v. Fant, 22 Wall. 116, 22 L. Ed. 780, which case was followed by the trial judge, Mr. Justice Miller says:
“No doubt there are decisions to be found which go a long way to hold that, if there, is the slightest tendency in any part of the evidence to support plaintiff’s case, it must be submitted to the jury; and in the present case, if the court had so submitted it with proper instructions, it would be difficult to say it would have been an error of which the defendant could have complained here. But, as was said by this court in the case of Improvement Co. v. Munson, 14 Wall. 448, 20 L. Ed. 807, recent decisions of high authority have established a more reasonable rule that in eveiy case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to.find a verdict for the party producing it, upon whom the onus of proof is imposed. * * * It is the province of the court, either before or after the verdict, to decide whether the plaintiff has given evidence sufficient to support or justify a verdict in his favor. jSTot whether on all the evidence the preponderating weight is in his favor. That is the business of the jury. But, conceding- to all the evidence offered the greatest probative force, which, according to the law of evidence, it is fairly entitled to, is it sufficient to justify a verdict? If it does not, then it is the duty of the court after a verdict to set it aside, and grant a new trial. Must the court go through the idle ceremony in such a case of submitting to the jury the testimony on which plaintiff relies, when it is clear to the judicial mind that, if the jury should find a verdict in favor of the plaintiff, that verdict would be set aside, and a now trial had? Such a proposition is absurd, and accordingly we hold 'the true principle to be that, if the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the ifiaintiff, the court should say so to the jury.”
This doctrine has been followed by numerous decisions of the federal courts: Montclair Tp. v. Dana, 107 U. S. 162, 2 Sup. Ct. 403, 27 L. Ed. 436; Railroad Co. v. Woodson, 134 U. S. 621, 10 Sup. Ct. 628, 33 L. Ed. 1032; People’s Bank v. Ætna Ins. Co., 74 Fed. 507, 20 C. C. A. 630; Sloss Iron & Steel Co. v. South Carolina & G. R. Co., 85 Fed. 138, 29 C. C. A. 50. It is too well settled to require a further citation of authority. These and many other authorities effectively dispose of the general question raised by the exception.
As to the specific question. The first reason given for error includes in its decision all the others, which, are but more detailed statements of a general proposition. The specific allegations, as set out in the record, do not allege as negligence the failure to provide for or make proper inspections of defendant’s cars. ' The alie-
The eighth assignment of error or reason for error is equally untenable under the rule. That there was material evidence which tended to show negligence, etc., is not sufficient under the rule as laid down. Was it sufficient to the judicial mind? Having looked upon the witnesses, observed their demeanor upon the stand, their manner of testifying, would the court have permitted a verdict to stand? Was it sufficient evidence — not testimony — to warrant a verdict? Hot in the mind of counsel or bystanders, but in the mind of ¡.he court, superintending and presiding at the trial, to permit a verdict to stand? If not, then there was no error.
The ninth assignment or reason for error is fully answered by the rule laid down by the supreme court in Kohn v. McNulta, 147 U. S. 238, 239, 13 Sup. Ct. 298, 37 L. Ed. 150. The rule governing the duty of an employer to an employó is essentially different from that governing the duty of a railroad to passengers. The argument of plaintiff seems to proceed on the theory that the burden is on the defendant to prove frequent inspections, and rebut a presumption of negligence, but there is no better settled principle than that he who alleges negligence must prove it. It cannot be inferred from an unproved fact. The question is not, as stated, did the absence of the handholds and bumper cause the accident? But was the absence of the bumper and handholds such negligence on the part of defendant, the proximate cause of the injury, as to render defendant liable in damages? Every accident on a railroad resulting in injury to an employe does not necessarily entitle him or his personal representatives to damages. The accident must be the result of negligence on the part of the railroad company, and that negligence must lie the proximate cause of the injury. This is familiar learning for which authority need not he cited.. Plaintiff's intestate was an em-ployé of defendant, not a passenger, or one disconnected with the company; and a different rule applies than would had he not been an employe. An employé assumes risks necessarily incident to his employment, and is not entitled to damages for injury as ot’uers who do nor assume such risks. The N. & W. car No. 5,347 was inspected under the rules of the company at Valleycrossing, Ohio, March 11th, and again at Kenova on March 12th; and there is no evidence to show it was1 not .inspected by the conductor and crew when the train stopped for water or passed other trains. So far as the evidence shows, the absence of the bumper was not observed until the accident, March 30th. The decedent knew, or should have known, the system and regulations of his employers as to inspections. The employé assumes the risks of the customs and methods
The other allegation of negligence — “having the bumpers so placed they would not meet and strike each other in such a. way as to prevent the cars from going together” — is the risk of a brakeman
“The rulo is now well settled that in general, when a servant, in the execution of his master’s business, receives an injury which befalls him from one of the risks incident to the business, he cannot hold the master responsible, but must bear the consequences himself.” And adds, after further quotation: “This accurate summary of the law supersedes tiie necessity of quoting cases, which are referred to by the author and by every recent writer on the same subject. * * * Tuttle, the deceased, entered into the employment of defendant as brakeman in the yard in question, with a full knowledge (actual or presumed) of all these things, — the form of the side tracks, the construction of the cars, and the hazards incident to the service. Of one of these hazards he was unfortunately the victim. The only conclusion to be reached from these undoubted facts is that he assumed the risks of the business, and ills representative has no recourse for damages against the company.”
To the same effect is the language of Mr. Justice Brewer in delivering the opinion of the court in Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298, 37 L. Ed. 150. The syllabus of the case is:
“A servant of a railroad company, employed in coupling freight cars together, who is well acquainted with the structure of the freight cars of his employer, and also those .of other companies sending freight cars over his employer’s road differing from his employer’s cars in structure and in the risk run in coupling them, assumes, upon entering upon the service, all ordinary risks run from coupling all such cars.”
Of what, then, did the negligence alleged, of which there was sufficient evidence, consist, to entitle the plaintiff to a verdict? The inspections were amply provided for, and there is no evidence of a failure to make such inspections, or that they were so negligently made as to make the employer liable in damages. The absence of the handholds was not the proximate cause of the injury. The fact that the bumpers did not meet and strike each other when a test was made is not sufficient, and the absence of the bumper was not such negligence and the proximate cause of the injury as to render defendant liable in damages. There was some testimony tending to show lack of care, disregard of rules and orders on the part of plaintiff’s intestate, which contributed to the accident and injury, but a finding of contributory negligence is only essential to an antecedent finding of negligence on the part of defendant. In the view the court takes of the case, this is unnecessary. It is not proved — and the burden of proof is on the plaintiff — that either or all the defects complained of were the proximate cause of the injury, and defendant had such knowledge of such defects as would make it liable in damages. Plaintiff’s intestate, like many others, was an unfortunate victim of risks he assumed in accepting extra-hazardous employment. Similar accidents frequently occur, and of men in such positions it may more truly than of any others be said in the midst of life they are in death. When the employer lias discharged every duty, complied with the prescribed rules, dam
GOFF, Circuit Judge, concurs in the judgment of affirmance.
Concurrence Opinion
(concurring). I fully concur in the conclusion reached by the court. The evidence establishing beyond question that Samuel L. Lusk, the intestate of the plaintiffs, when he undertook to couple the cars, had been informed that another hand had been instructed to perform this duty; that he also was aware that under the rules of the company all couplings must be made with a stick, and that going between the cars must be avoided, — -notwithstanding this, he took upon himself, without orders, to do the coupling, and in doing so, instead of using a stick, he attempted to do it with the hand. His own act's were the proximate cause of his injury. He put himself in a position- in which he had no business to be, and attempted to discharge the duty of another. In doing this he violated the rule of the company adopted for the prevention of the very thing which happened. He voluntarily put himself, without cause, in a position of peril, and enhanced his danger by nonobservance of the rule. The court below could not have done otherwise than it did in instructing the jury. Affirmed.