| U.S. Circuit Court for the District of Minnesota | Oct 4, 1883
I have considered, gentlemen, this motion that has been made asking the court to instruct the jury to find a verdict for the defendant, which has been presented and urged, mainly, on two grounds: First, that the evidence of the, plaintiff shows that the accident, and the injury following it, were caused by the negligence of a co-employe; that the general rule is, where a person enters into the employment of a railroad company, that being a hazardous and perilous business, he undertakes all the ordinary risks that pertain to that business, and that among the risks which he thus takes upon himself are the dangers or risks from the negligence of a co-employe; and it is urged that the uncontradicted evidence shows that the accident in this case was due to the neglect of a co-employe, — that is, of a person who was engaged in the same common employment with the plaintiff; and that, as it was due to the negligence of a person standing in that position, under the general rule of law the plaintiff cannot recover. It is also urged that the evidence shows that the plaintiff, by his own action, placed himself in a dangerous position that contributed directly to the producing of this action; that is to say, that he got upon the pilot of this engine and rode there; that that was contributory negligence upon his part, and of such a character as to defeat his right of recovery in-the case, under the evidence as it is now presented before the court.
I will present my views first upon the latter proposition in this case. It is the one that, to my mind, is the question that must be decisive of this motion. .The supreme court of the United States has had this question before it in several different cases, and has laid down general rules that of course will control all inferior courts of the United States in determining when it is a proper case for the action of the court in giving a peremptory instruction to the jury to find for the defendant by reasofi of the fact that the plaintiff has failed to make out his case.
In the case of Hough v. Ry. Co. 100 U.S. 213" court="SCOTUS" date_filed="1880-01-12" href="https://app.midpage.ai/document/hough-v-railway-co-90033?utm_source=webapp" opinion_id="90033">100 U. S. 213, that was cited in the argument yesterday in the discussion of this question, the supreme court say:
“If the engineer, after discovering or recognizing the defective condition of tlio cow-catcher or pilot, had continued to use the engine, without giving notice thereof to the proper officers of the company, ho would undoubtedly have been guilty of such contributory negligence as to bar a recovery, so far as sucli defect was found to have been the efficient cause of the death. He would he held, in that case, to have himself risked the dangers which might result from the use of the engine in sucli defective condition.”
Now, then, the evidence in this case shows that this locomotive was used for the purpose of transporting these employes and laboring men to and from the place at which they were engaged in their work. The employes knew that; they used it day after day, without complaint, so far as the evidence shows. There was no promise upon the part of the railroad company to supply them any different mode of transportation. They wont upon this engine, and the evidence discloses the fact that they got upon the engine at different places; that is to say, they placed themselves upon different positions on this engine; and, among others, they placed themselves on the pilot, in front of the engine. The evidence does not show that that wras done by the direction of any one in the employment of the company; that is to say, neither the engineer nor fireman, nor the boss in charge of the gang, ever directed that this should be done. It seems, as far as the evidence discloses the fact, to have been done by the men themselves; they chose to place themselves in that position. It is said, however, that one reason for it — and probably the reason that is assigned — is that the engine was so full of men that some of them, if they rode at all, were compelled to place themselves in that position, in front of the engine. Granting that position, we have this^
In the case of Railroad Co. v. Jones, 95 U.S. 439" court="SCOTUS" date_filed="1877-12-10" href="https://app.midpage.ai/document/railroad-co-v-jones-89621?utm_source=webapp" opinion_id="89621">95 U. S. 439, (a case somewhat similar in its features to the case now before the court,) the supreme court laid down some rules'which seem to me to be applicable to this case. In this ease — the case of Railroad Co. v. Jones— the facts were that the person who was hurt was riding, with one other, upon the pilot of the engine. The accident was caused by collision with some cars that were standing upon the track; and this locomotive, came in collision with these cars, and the plaintiff was injured thereby. Now it appears that this plaintiff was engaged in the service of the company as a day-laborer. “He was one of the party of men employed in constructing and keeping in repair the roadway of the defendant. It was usual for the defendant to convey them to and from their place of work. Sometimes a car was used for this purpose; at others, only a locomotive and tender were provided. It was common, whether a car was provided or not, for some of the men to ride on the pilot or bumper in front of the locomotive. This was done with the approval of Yan Ness, who was in charge of the laborers when at work, and the conductor of the train which carried them both ways. The plaintiff had no connection with the train. On the twelfth of November before mentioned, the party of laborers including the plaintiff, under the direction of Yan Ness, were employed on the west side of the eastern branch of the Potomac, near where the defendant’s road crosses the. stream, in filling fiat cars with dirt and unloading them at an adjacent point. The train that evening consisted of a locomotive, tender, and bo? car. When the party was about to leave, on their return that evening, the plaintiff was told by Yan Ness to jump on anywhere; that they were behind time, and must hurry. The plaintiff was riding on the pilot of the locomotive, ^and while there the train ran into certain cars belonging to the defendant, and loaded with ties.” That is the evidence as^ given by the plaintiff. Of course, upon the ruling here, the court must have viewed the evidence in the aspect that was most favorable to the plaintiff. On the part of the defendant there was evidence tending to show that Van Ness had, on several occasions before the accident, notified the laborers that they must ride in the car and not on the engine; and the plaintiff in particular, on several occasions, not long before the disaster, was forbidden to ride on the
“ One wlio by his negligence lias brought an injury upon himself cannot recover damages for it. Such is the rule of the civil and of the common law. A plaintiff in such eases is entitled to no relief. But where the defendant has been guilty of negligence also, in the same connection, the result depends upon the facts. The question in such cases is: (1) Whether the damage was occasioned entirely by tlie negligence or improper conduct of the defendant; or (2) whether the plaintiff himself so far contribuí ed to the misfortune by his own negligence, or want of ordinary care and caution, that, but for such negligence or want of care and caution on his part, the misfortune would not have happened. In the former case, the plaintiff is entitled to recover. In the latter case, he is not. It remains to apply these tests to the case before us.”
The court then proceeded to say, after a brief discussion of the evidence:
“ For the purposes of this case we assume that the defendant was guilty of negligence.
“ The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cow-catcher, and obviously a place of peril, especially in case of collision. There was room for him in the box car. lie should have taken his place there. He could have gone into the box car in as little, if not less, time, than it took to climb the pilot. The knowledge, assent, or direction of the company’s agents as to what ho did is immaterial. If told to get on anywhere; that the train was late, and that he must hurry, — this, was no justification for taking such a risk. As well might he have obeyed tlie suggestion to ride on the cow-catcher, or put himself on the track before the advancing wheels of the locomotive. The company, though hound to a high degree of care, did not insure his safety. He was not an infant, nor -non compos. Tlie liability of the company was conditioned upon tlie exercise of reasonable and proper care and caution on his part. Without tlie latter the former could not arise. lie and another who rode beside him were the only-persons hurt upon the train. All those in the box car, where lie should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own recklessness and folly. He was himself the author of Ins misfortune. This is shown -with as near an approach to a demonstration as anything short of mathematics will permit. The case is thus clearly brought within the second of the predicates of mutual negligence we have-laid down.”
Now, tlio court there bold that it would make no difference im the ruling if it should be shown that tlie plaintiff had occupied this position upon the pilot with the knowledge or assent, or even by the direction, of the company’s agents. They hold that as immaterial; that those things would be no justification for his taking the risk; that ho was not an infant, — in other words, he was of age, — he could see and know the risk as well as any other person, and if, under those circumstances, lie chose to place himself in that position, then he must be held to have assumed the risks which would pertain to
The evidence in the ease now before the court, just as in this case of Railroad Co. v. Jones, shows that if the plaintiff had not been on • the pilot he would not have received any injury, — or, at least, none to speak of; certainly these injuries, of which he is now .complaining, ■pould not have been occasioned to him. ’ Just as the court say in the case of Railroad Co. v. Jones: “This is shown with as near an approach to a demonstration as anything short of mathematics will permit,” that if he had been at another place than where he was he would, not have been hurt, because there were a large number of men besides himself upon that engine, and no other one received any injury, except, perhaps, one person, who was struck in the face by some wood that was thrown from the tender. It comes down, therefore, simply to the inquiry of whether or no plaintiff is to be held responsible for having placed himself in this dangerous position that he occupied. I think there can be no question about it. There certainly can be no doubt, upon that decision, that where a man voluntarily places himself on the pilot of a locomotive, it must be held by every one that he is riding in an exceedingly dangerous place, and that it is folly for a man to do it; that it is recklessness; and if injury results, it seems to me he must be held to assume the risk for it.
I have hesitated in this case, by reason of the fact that the point might be made to the jury, and they asked to find from this evidence, that the party was justified in going where he did, and the company could take no exception thereto, because the engine was not sufficient, under one view of the evidence, to afford room for these men all to ride upon it unless some of them got upon the pilot, and therefore, by reason of that fact, it must be held that the company invited him •and authorized him to go there; but the difficulty with that position is that, as I understand this decision in Railroad Co. v. Jones, the supreme court of the United States expressly say that if he had gone there by the direction of the company, it would not make any difference, — he still assumed the risk. Now, all the jury could be asked to infer in this case would be that the company authorized him to go there by reason of the fact that they did not have sufficient accommodation for the men to ride any other place, and, as there was not room enough for all of them to go on the tank, that the company intended them to ride on the pilot, or directed them to go there; but, as I say, it seems to me that the supreme court have met that very position by saying thaf that is immaterial; that even if the agents of
If I am right in this view of the case, it would follow that the duty is imposed upon mo, as is said in this case of the Railroad Co. v. Jones, that, upon being so prayed, it is- the duty of the court to direct the jury to return a verdict for the defendant, and that if I refused to do so it would be error. If I am correct in that view, it is unnecessary for me to pass upon the other question that has been discussed at considerable length, as to whether or not the plaintiff is a co-employe under the general rule of law, and whether or not, where the injury results from the negligence of a co-employe, it is one of the ordinary risks which the party assumes w'hen he enters into the employ of the railroad company.
I must say it is with considerable regret that I am forced to the conclusion to -which I have come in this case. The facts present a ease which certainly must appeal very strongly to the sympathies of every one, and to the sympathies of those who are engaged in the masiagement of this railroad company, that they should, without reference to the question of the legal liability, — whether there is any legal liability or not, — endeavor, as far as lies within their power reasonably, to aid parties who receive injuries when they are in the employ of the company. My duty, of course, is simply to enforce the law as I find it laid down by higher tribunals, whose decisions I must follow.
Entertaining the view I do of this case, gentlemen, I am compelled to grant the motion of the counsel for the defendant.