203 F. 685 | 8th Cir. | 1913
This action was brought by the defendant in error, who- will be designated as plaintiff, against plaintiff in error, who will be designated as defendant, to recover for an injury sustained by being struck by the engine of defendant’s train. It appears that plaintiff was in the employ of defendant as telegraph operator at New Sharon, Iowa, and also assisted the station agent in and about handling the baggage, receiving the same from trains, and delivering the same to trains. The defendant’s railroad track ran practically north and south on the east side of the depot; there being a platform between the depot and the tracks. A freight train from the north was about two hours late. Plaintiff inquired of the dispatcher where the train was, and was informed it had not yet reached Searsboro, a station about eight miles north of New Sharon. Plaintiff then went out to a baggage truck standing close to the edge of the platform next to the track to the northeast of the depot, took a hand grip off, handed it to a lady, had a little conversation with a gentleman, returned to the truck, pushed it along on the platform to the
•‘But, as I have already said to you, down to the time he was within the danger limit, in my judgment, there is nothing to be considered by you. Now, after he was within the danger limit, could he, by the exercise of diligence, have been seen by the engineer to be inside of the danger limit? Then, from that point, had this engineer exercised care and freedom from negligence, as he ought to do, could he then have averted the injury? If not, then your verdict will be in favor of the company. If he, the engineer, could have averted the injury after he saw the hazardous position in which the plaintiff had placed himself, then 3'ou will find a verdict for the plaintiff.”
This instruction was faulty, in that it submitted to the jury the question as to whether or not, in the exercise of diligence on the part of the engineer, he could have discovered that the plaintiff was inside the danger limit. The instruction in that respect was excepted to by defendant.
In Denver City Tramway Co. v. Cobb, 164 Fed. 41, 90 C. C. A. 459, Justice Van Devanter, then Judge \fan Devanter, speaking with regard to the exception which permits plaintiff to recover, notwithstanding,his own contributory negligence, said:
“The exception does not appty where the plaintiffs negligence or position of danger is not discovered by the defendant in time to avoid the injury.”
In Hart v. Northern Pac. Ry. Co., 196 Fed. 180, 116 C. C. A. 12, this court said:
“It presupposes or concedes the existence of contributory negligence, and seeks to avoid its consequence by subsequent occurrences. If it were true that Starr was in a state of actual peril, that the defendant had actual knowledge of that peril, and after that knowledge was acquired failed to exercise ordinary care to prevent injuring him, these facts might create a cause of action, or might excuse the contributory negligence which brought Starr into his position of peril.”
Numerous other authorities might be cited to the same effect, to wit, that the defendant’s liability under what is known as the last chance doctrine is only where, after actual discovery of the plaintiff’s perilous position the injury could be avoided by the exercise of ordinary care and diligence.
The evidence, however, is undisputed that, as soon as the engineer operating the engine discovered that plaintiff was in a position of danger he applied the emergency brake, and stopped the train as soon as possible, the train coming to a stop within about 100 feet.
At the close of all of the evidence, defendant requested the court to instruct a verdict for the defendant, which was overruled, to which an exception was taken. As the evidence was indisputable and conclusive that, as soon as the engineer knetv that the plaintiff was in a situation of danger, he immediately did all that could be done to avoid the accident by applying the emergency brake, the requested instruction should have been given.
The judgment is reversed, with directions to grant a new trial,