20 Minn. 9 | Minn. | 1873
By the Court.
The instructions of the court to the jury were sufficiently favorable to the defendant. The court stated, “ that to the general rule, that one servant cannot recover damages from his employers for injuries occasioned by the negligence of his fellow servants, there are two exceptions : the first is where the employer is at fault in not employing safe and competent servants; the second is where the employer is at fault in employing defective machinery.” The defendant excepted to this statement, and in support thereof contends that the charge was too broad, because though the defendant may have employed defective machinery and been at fault in so doing, still if the plaintiff knew it and did not object, he could not recover.
The proposition is correct, in itself, though plaintiff’s contributory negligence in any given case may prevent his recovery. It is sufficient to say, assuming that defendant states the law correctly, that not only should it have asked for more specific instruction if it had apprehended that the jury might be misled by the generality of instruction applied to the facts, but the court in the course of its charge expressly instructed the jury “ that if this coupling arrangement was defective, and plaintiff knew of it and did not notify the proper person,
The defendant also excepted to the statement by the court in its said charge, that “ it was for th'e jury to say whether that was a safe and proper coupling arrangement.” It insists that this was error, because “ there wa's no evidence to the contrary.” If not, the court also erred in refusing to give the instructions requested by defendant, viz.: “ that the evidence was insufficient to warrant a verdict for plaintiff.” The point may, therefore, be considered in connection with the remaining ground upon which defendant moved for a new trial in the district court, and insists in this court, that such new trial should have been granted, (the point that the damages were excessive not being urged here) viz.: that the verdict is not justified by the evidence.
The plaintiff was injured in endeavoring to couple together an engine and car. The defendant’s theory of the case is, that the coupling arrangements were perfect, if properly managed, but that “ the smoke, steam and snow were flying in blinding clouds, and they were all in a hurry to make up the train, get their dinners and go home. The plaintiff, inspired by the confidence which long experience in such matters turns into recklessness, stepped in between the tender and the car, as he had probably done thousands of times before, and not calculating on the effect of the steam, smoke and snow that filled the space and blinded him, he failed to give the link the right direction, and met with one of those unfortunate accidents which are incident- to the hazards of his profession.”
It may have been so, certainly, but the plaintiff testifies that “ when he stepped in there (in between the tender and car) there were no obstructions to my sight, nor when I
In accordance witb tbe settled rule of this court, we must take it to bave been tbe fact, that such was tbe cause of tbe failure to couple, unless such a conclusion would be most manifestly and palpably against the weight of tbe evidence ( \2 Minn. 308.) Tbe fact that bears hardest against it is that tbe other end of tbe car bad been coupled to this engine witb tbe same link tbe same morning and drawn witb it all day ; and there being evidence tending to show that the height of tbe car was the same at both ends, if the defendant had proved that such coupling was effected in tbe ordinary manner, i.e., in the manner in which plaintiff was attempting to do tbe work, tbe inference as to tbe cause of bis failure would bave been strong indeed. But' while the defendant’s assistant superintendent testifies that there w*as “no difficulty in coupling it” in the morning, be neither did it, nor saw it done, and those who did are not produced.
The same remarks applies to the evidence of tbe assistant superintendent, that there was no difficulty in coupling on after tbe accident, — and to that of the engineer, that tbe coupling was done in five minutes; not over ten. There was no trouble in coupling 17 on to tbe car. I only came back with the engine once and the coupling was made. They did not make the coupling, nor see it made, and those who did are not called to say how it was done, nor with what kind of link, while a delay of five or ten minutes in making it, points to something out of the ordinary mode of effecting it.
The testimony of the officers of the road, that there was no difficulty in coupling this engine to any car on the road “ with the ordinary appliances,” “ with the crooked links in use on the road,” is entitled to weight, but when weighed against positive testimony that with one of the “ ordinary appliances” and “ crooked links” it could not be done with respect to this car without the assistance of another man in lifting the draft iron of the latter, a decision against such a conclusion is certainly not most manifestly and palpably against the weight of the evidence.
On the whole, so far as this point is concerned, the verdict of the jury must be taken to have settled it, that the cause of
It is admitted that if the engine was too high to couple with this link and had been furnished with no other, the case would be one of defective or insufficient machinery furnished —“ the insufficiency of the machinery would be so patent,” in the defendant’s opinion, that plaintiff would be bound to know it and decline the service. “ Being an expert in the business, nothing but negligence and recklessness could induce him to attempt to make a coupling with a car to which the link was not adapted.”
But the defendant contends that the engine was supplied with perfect machinery adapted to the coupling of ev.ery kind of cai’s thereto. Upon this point it relies upon the testimony of its superintendent. He testifies that “ there are five, six or seven different kinds of coupling links used on defendant’s road. They vary from a straight link, eight or ten inches long, to a long coupling bar, three feet long. There are a great variety of crooked links, so that they would vary in line from one inch to six inches; also, one coupling bar that is made with a joint, so that it will describe a half circle. Some links are round, some square, some flat —all sorts of links.” “ They (conductors) are instructed to carry a set of links, chains, ropes and other fixings. These
Is it to be understood from this testimony that every train is furnished wdth all the different kinds of coupling finks in use on defendant’s road ? That depends on what the super- • intendent means by a “ set of links,” and was for the jury to decide. As to these curved links, moreover, the witness Mun-roe, the defendant’s assistant master mechanic, testifies that “ the offset in a bent link is generally about two and one-half inches. There is a uniform rule for bending these links ; it may vary a quarter of an inchtestimony which directly
Plaintiff testifies, “this same link had not been on this engine all the time I ran her; we used to break them occasionally ; a crooked link was the best for that engine, and we had ordinarily run it with just such links ; we always carried extra links, straight and crooked ones -, it is the conductor’s business to see that there are extra links on a train ; we sometimes carry them on the engine and sometimes on the caboose, but we had a tool box on this engine and carried them there.”
The plaintiff’s was a freight train, the cars of which are higher than passenger cars, and he swears that he never violated his instructions received from the superintendent as above. If upon this evidence, the jury should have been of the opinion, that the plaintiff’s engine when he first took charge of it was furnished by defendant only with straight links, and curved links like the one in question, with an offset of about two and one-half inches, which were not adapted to be used on that engine, with the bumper it then had, in connection with the car in question, and that such stock had simply been kept good, we could not say that such a conclusion was not justified by the evidence.
Then, as engines are to go wherever ordered, if the jury should have found' that this was not a safe and proper coupling arrangement, we could not say that such a conclusion was not justified by the evidence. If engines are to go wherever ordered, and to couple on to any car defendant has, its duty to the lives of its employees, most assuredly, is to have those engines fitted with the proper appliances for doing it safely. Yet here was an engine not provided with the means and appliancesffor safely coupling on to this car, to which, nevertheless, it is ordered to be coupled. There the employer is at fault in not providing proper machinery, and is liable,
The defendant suggests that he might have ascertained at the time by his eye,' while the engine was approaching, whether or not the height of the bumpers corresponded. But less than an inch would make all the difference in the world. The defendant in view of its theory as to the blinding clouds of snow, steam and smoke calls for superhuman accuracy of vision. It must be taken after verdict, on the evidence, that as matter of fact he knew of no difficulty:
The court below instructed the jury that “ there is another rule of law that, if a servant using defective machinery, understands the nature of it, and goes on using it without objection, his employers are not liable for any injury sustained by him, by reason of such defect. If this coupling arrangement was defective, and plaintiff knew of it, and did not notify the proper person, he cannot recover.” This was certainly sufficiently favorable to the defendant.
The case does not require us to pass upon its correctness,
It has been recently held in England (Holmes v. Clarke, 6 Hurlstone & Norman, 348 ; 7 ib. 937,) that knowingly continuing in the use of defective machinery is not per se negligence. “ Many cases,” it is said, “ might be put in which a servant might reasonably incur the risk, instead of abandoning the service.” The plaintiff’s knowledge is only a fact in the case, to be taken into consideration by the jury, with all the other facts and circumstances in determining the question whether the plaintiff has himself helped to bring about the accident.
So, where it was the duty of a servant of a railroad company to uncouple the cars of a train, and this could not easily be done while the train was still, and he in endeavoring to uncouple them while the train was in motion stepped between the cars and met with an injury caused by a want of repair of the road bed of the railroad, the supreme court of Massachusetts, while holding it to be a case of injury arising from a failure by the company to provide suitable instruments and means for doing the work, held, that the court could not rule, as matter of law, that he was careless, but should submit the question to be determined by the jury though he continued in the employment of the company after he knew of the defect. Snow vs. Housatonio Railroad Co., 8 Allen, 441. “ His continuance in the employment did not necessarily and inevitably expose him to danger.” We give no opinion upon the point because the case before us does not require it. This is a case to which the words of Cockburn, chief justice, in the case in
If the plaintiff had been one of the two brakemen on his freight train who went with him on this trip, it would not be contended that, aside from any special knowledge, he would not have the right to presume that the train as it was, and the tender as it was then and there equipped was a safe and proper piece of machinery. The engine as equipped was adapted-to freight cars, and plaintiff had run it only in connection with a freight train. As conductor of a freight train, it is not contended that it was his duty to make himself familiar with the relative height of passenger trains, and what, if any difference there might be in the proper coupling-arrangements. As to other knowledge or means of knowledge of plaintiff, it appears that plaintiff was first employed by the company in 1864 or 1865 as a brakeman, and after eighteen months was made a conductor of a working train, and so continued, with the exception of two months, till he left the company’s employment, and remained out of it for
Upon a careful consideration of it and of defendant’s argument therein, we are unable to discover any ground justifying us in ordering a new trial.
Order appealed from affirmed.