98 F. 683 | 7th Cir. | 1900
after making the foregoing statement of the case, delivered the opinion of the court.
It is impossible to discover any rational or satisfactory ground upon which this verdict can be sustained. There was no evidence in the case that the switching of cars upon side tracks by a running switch is of itself dangerous or unlawful. It is not claimed to be the law that such a practice is unjustifiable, or constitutes negligence per se on the part of the railroad company. The truth is that it is the common practice in most or all of the railroad yards in the country. It is claimed in this case that a separate engine
It is said that the jury are to judge of the circumstances, and draw their own inferences from facts. This is true, where there are circumstances and testimony from which inferences may properly be drawn. But the difficulty lies in the fact that there are no circumstances in evidence from which the inference of negligence on the part of the company, or of any employé of the company, can properly be drawn. The court, in its general charge, instructed the jury:
•‘That they were to judge in the first place (for that is most important) whether this so-called running or flying switch vas such an operation of the road, or of the switch, or switching of cars, as was reasonably compatible with the safety of the parties employed to work there. If it was reasonably safe, then the party employing the deceased, perhaps, had complied with his undertaking; but if it was not a reasonably safe operation, so to speak, of the engine and ears,--of the switching process that was going on there, — then perhaps the defendant would be guilty.”
This instruction and others of a similar import were objected to, and exception thereto taken by defendant’s counsel. We mention these things here only for the purpose of saying that it seems altogether probable, from these instructions and from the verdict, that the jury supposed they were authorized to say that if they found these flying switches to be dangerous, or more dangerous than other methods that might have been employed, in that case they should find the defendant company guilty of negligence. But this, as we have seen, cannot be the law. And apparently the jury must also have found that the contributory negligence of the deceased in going upon the track in front of a moving car after being warned by his foreman of the danger would not prevent a recovery, if the jury found this method of switching dangerous. The instructions, however, on the subject of contributory negligence were quite correct and full. It is true that there is evidence to show that the yard was within the corporate limits of a village of 1,000 or 1,200 inhabitants, and that 30 or 40 feet away was a public street crossing. But how can these facts change or influence the duty of the company to the employé Hurd? Hot at all. If he had been a traveler upon tbe public crossing, then the question in regard to the propriety of switching a car over the crossing without an engine attached would have some significance.
, As we have seen, the charges of negligence in the declaration are
Counsel for defendant in error lay some stress upon the fact that the brakeman sent in charge of the shunted car was located on the rear end of the car, instead of the front. But he was where his brake was by which the car was controlled, and .he was not there for the purpose of giving warning. Other means were provided for that. But assume that the brakeman was negligent in not being in the right place. It is quite clear that the plaintiff cannot recover for the negligence of the brakeman or foreman or other employés in charge of the train. They were fellow workmen with the deceased. This is not a question of local law, as is claimed by counsel for the defendant in error, but is’one of general law, to be determined by a reference to all the authorities. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914, 37 L. Ed. 772. And the decisions of the United States supreme court are controlling upon this question. Martin v. Railroad Co., 166 U. S. 399, 17 Sup. Ct. 603, 41 L. Ed. 1051; Railroad Co. v. Peterson, 162 U. S. 346, 16 Sup. Ct. 843, 40 L. Ed. 944; Same v. Charless, 162 U. S. 359, 16 Sup. Ct. 848, 40 L. Ed. 999. These cases are quite conclusive of the case at bar, so far as any question of negligence on the part of the engineer or brakeman in charge of the train is • concerned, if any such negligence were charged or proven. But no such negligence is charged, and, if it were, there is no evidence tending to support the charge. The judgment of the circuit court is reversed, and the case remanded, with instructions to award a new trial.