Kansas & A. V. Ry. Co. v. Dye

70 F. 24 | 8th Cir. | 1895

CALDWELL, Circuit Judge,

after stating the case as above, delivered the opinion of the court.

The defendants in error contend that the answer does not specifically deny the averment in the complaint that it was the duty of the defendant “to notify its servants of any change in the schedules, and of the time of any extra or special trains,” and that, therefore, this averment of the complaint, under the rule of code pleading in force* in the Indian Territory, stands admitted. This averment is. not specifically denied by the answer. But it is apparent from the record that the case was tried in the lower court upon the assumption that every averment of the complaint imputing negligence to the defendant was properly put in issue by the answer. No contention to the contrary was made in the lower court. It is quite obvious that if the plaintiffs, at the trial, had set up this claim, the defendant would have instantly silenced it by an amendment of its answer. Where it clearly appears from the record that the case was tried in the lower court upon the theory that all the averments of the complaint were put in issue by the answer, and the testimony was introduced and the instructions given on that theory, without objections from either side, the plaintiff will not be permitted to question the sufficiency of the denials of the answer in the appellate court. Parties on appeal must abide by the theories'adopted by them in the trial court. They will not be allowed to change their base in the appellate court. The pleadings will be treated on appeal as the parties elected to treat them in the trial court. Elliott, App. Proc. §§ 481, 490, 494; Daniels v. Brodie, 54 Ark. 216, 15 S. W. 467.

At the close of the whole evidence the court was asked to direct the jury to return a verdict for the defendant, and the refusal to grant this request is the first assignment of error. This request sometimes has the effect of raising for the consideration of the ap-pellaic court a pure question of law, rather than any question of fact, and that is its effect in this case. It is obvious that there can be no recovery in this case if the rules of the defendant company relating to the duties of section foremen and the mode of running hand cars are reasonable, and obligatory on the section foremen. These are questions of law, and not of fact. By these rules the section foremen are required to “carefully flag their truck and hand cars against special and extra trains or engines, which may be run at any time, day or night, without previous notice to them.”- They are further told that “special care must be taken in running hand cars and truck cars on all sections of the road where, by reason of fogs, sharp curves, or other circumstances, risk or danger is involved.” And the last requirement of the rule, which is addressed specially to section foremen, and relates to the use of hand cars, is peremptory and absolute, —that “these cars must always be protected by a flag when a clear track cannot he seen for a safe distance.” These rules are reasonable. They are founded on the experience and observation of those who have had the management and operation of railroads in this country from their creation down to the present time. They are essential for the protection and safety, not only of the property of (he company, but of passengers, and of the employés of the company, — more especially of section foremen and their men, whose duties require.of them the use of hand cars. They are designed, also, to prevent delay and obstruction in the running of trains, and at the same time secure the utmost safety to the sectionmen, compatible with their employment. The usual and necessary risks and dangers incident to their employment, they assume. On the question of the risks assumed by sectionmen and other laborers, the supreme court of the United States, in a late case, reversing a judgment rendered on the circuit by the writer of this opinion, say:

“As a laborer upon a railroad track, cither in switching trains or repairing Hie track, is constantly exposed to the danger of passing trains, and bound to look out for them, any negligence in the management of such trains is a risk which may or should be contemplated by liirn in entering upon the service of the company.” Railroad Co. v. Hambly, 154 U. S. 349, 357, 14 Sup. Ct. 983.

These rules are not incapable of observance; and obedience to .them imposes no unnecessary hardship or burden on section foremen or their men, while it protects them from injury. The time of the men, required to comply with these rales, is the company’s. No loss of wages ensues, no matter how much lime is taken up in the observance of the rules. It is no loss or hardship, therefore, to the sectionmen, to require them to obey rules made, in a great measure, for their own protection. So necessary and reasonable are these rales that it would be negligence in law for a railroad company to operate it.s trains without adopting them, or rales of similar import. We do not think these rales tend to impair the safety of employés, as counsel for the defendants in error contends. Unquestionably, if they did, they would be void, and their adoption by the company an act of criminal negligence. Quilliam did not, on the occasion of this accident, comply with these rules. He did not flag his hand car “against special and extra trains,” as the rule required Mm to do. “Sharp curves and other circumstances” made the running- of the hand car at the point where the accident occurred extremely dangerous, and no “special care” or precaution was taken to avert the danger, other than to stop the hand car and listen for a coming train. Tire sharp curve in the track at the east end of the bridge, and the timber on either side of the track, made it impossible to see an approaching train for a safe distance, and the rule is explicit that “these cars [hand cars] must always be protected by a flag when a clear track cannot be seen for a safe distance.” The conditions existing at the time and place of the accident, all of which were known to the men on the hand car, called for the exercise of the greatest caution, and the strictest observance of the rules applicable to dangerous conditions. The situation was rendered extrahazardous by the existence of the following, among other conditions: There was a long, high bridge and trestle to be crossed by the hand car. There was a sharp curve at the end of the bridge, which, with the timber on either side of the track, effectually obscured the view of a coming train before it reached the east end of the bridge. A coming train would be running on a down grade as it approached the bridge, and the whistle and noise of a coming train would be wafted away from the men on the hand car by. the stiff wind blowing in the opposite direction to that in which the train was coming. It would be difficult to conceive of the presence of conditions demanding a stricter observance of rules, and the exercise of greater caution. It was a place that required of the men on the hand car the use of every reasonable safeguard against such accidents as that which occurred. There is no pretense that the requirements of the rules were observed by the section foreman in charge of the hand car. It is indisputable that their nonobservance contributed to, if it did not occasion, the accident; and, even if the defendant was guilty of negligence — a question upon which it is not necessary we should express an opinion, — the section foreman was clearly guilty of contributory negligence, which precludes a recovery in this case, and the court below should have so told the jury. Olson v. Railway Co., 38 Minn. 117, 35 N. W. 806; Railroad Co. v. Reesman, 19 U. S. App. 590, 9 C. C. A. 20, and 60 Fed. 370; Beech, Contrib. Neg. § 141.

The conclusion reached on the first assignment of error renders it unnecessary to consider any of the others. The judgment of the United Htates court in the Indian Territory is reversed, and the case remanded for a new trial.