Louisville & N. R. v. Wene
202 F. 887
7th Cir.
1913
Check Treatment
KOHLSAAT, Circuit Judge

(аfter stating the facts as above). [1] It is conceded that defendant was engaged in interstate commerce ‍‌​‌​‌‌‌‌‌​‌​​‌​​‌​‌​​​‌‌‌‌​​​​‌​​​‌​​​​​‌‌​‌​​‌‌‍and subject to the provisions of the so-called Federal Employer’s Liability Act of April 22, 1908.

In its brief, at page 19, defendant says:

“The question at bar raised by thе various assignments of error may with propriety be grouped into almost a single legal question, although presented in different forms. Can a plaintiff injured, being himself the offending and negligent factor, his negligence being the proximate cаuse of the injury, recover against his master for his injury? ■ Or, stating ‍‌​‌​‌‌‌‌‌​‌​​‌​​‌​‌​​​‌‌‌‌​​​​‌​​​‌​​​​​‌‌​‌​​‌‌‍the proposition more favorably to the defendant in errоr, where, under the Federal Employer’s Liability Act * * * an employé is injured through his own negligence and that of the railroad сompany, Ms employer, and where the negligence of the employé is equal to or greater than that of thе railroad company, may the employé under said act recover at all?”

[2] The material evidentiary faсts are not contested. By the foregoing, it will be seen that defendant insists that these show the proximate cause of the accident to have been the open switch. Yet this would have been innocuous had the defendant’s enginеer observed-the signal at-the switch. On an upgrade, and even while running at a speed of 18 or 20 miles an hour under a city ordinance which limited the train’s speed to ‍‌​‌​‌‌‌‌‌​‌​​‌​​‌​‌​​​‌‌‌‌​​​​‌​​​‌​​​​​‌‌​‌​​‌‌‍10 miles an hour, there can be no question of the engineer’s ability, in the exercise of reasonable diligence, to have stopped his train between the point in the track from which thе open switch -signal became observable (and when he was in duty bound, under the circumstances of the occasion, to have seen it) and the switch. Clearly, the engineer’s negligence was later and quite as apparent as was the decedent’s.

In Pittsburgh, etc., Co. v. Sudhoff, 173 Ind. 314, 90 N. E. 467, under substantially the same state of facts as here, it was held that the act of a brakemаn in failipg to close the switch could not be held to be the proximate cause, while it has been held in a number of cases that where the facts relating to proximate cause ‍‌​‌​‌‌‌‌‌​‌​​‌​​‌​‌​​​‌‌‌‌​​​​‌​​​‌​​​​​‌‌​‌​​‌‌‍are undisputed and but one conclusion сan be deduced therefrom, that question becomes a matter of law to be determined by the court. Pittsburgh, etc., Co. v. Sudhoff, supra, and cases cited. We do not, however, consider that rule of law controlling here.

[3] The court by its instruction held that the evidence showed that the defendant was guilty of negligence, which made it liable for damages to the next of kin for causing decedent’s death. In this the jury concurred. It also held, the jury concurring, that decedent was guilty оf contributory negligence, and the court thereupon held that, to the degree in which such contributory negligencе contributed to the injury, the liability of defendant should be abated. Thus the amount of damages ‍‌​‌​‌‌‌‌‌​‌​​‌​​‌​‌​​​‌‌‌‌​​​​‌​​​‌​​​​​‌‌​‌​​‌‌‍to the next of kin, for which defеndant should be held in the first instance, and the amount thereof which should be abated by reason of decedent’s cоntributory negligence, were the only matters left for the jury to pass upon. The question as submitted was not ás to the proximate cause, but as to the degree of negligence of the respective parties. Manifestly, to give effect to the act, it is essential that the relative amounts of damages caused by the negligence of the *892respective parties should be- declared, and we know of no fairer method than that followed by the trial judge in this case.

We said, in Grand Trunk Western Railway Co. v. Lindsay, 201 Fed. 836, handed down at the present term of the court:

“If, under the Employer’s Liability Act, plaintiff’s negligence contributing with defendant’s negligence to the production of thе injury, does not defeat the cause of action, but only lessens the damages, and if the cause of action is established by showing that the injury resulted in whole or in part from defendant’s negligence, the statute would be nullified by calling plaintiff's act the proximate cause and then defeating him, when he could not be defeated by calling his act contributory negligence. ■ For his act was the same act by whatever name it be called. It is only when plaintiff’s act is the solе cause — when defendant’s act is no part of the causation — that defendant is free from liability under the act.”

That he was not required to and did not instruct as to proximate cause, did not work any injury to defendant, as we read the undisputed evidence; and the errors based upon that point are held to be not well assigned. The construction of this act asked for by defendant, viz., that, if the jury should find from the evidence that the negligence of plaintiff equaled or exceeded that of defendant, then they could assess no damages against defendant, is not deemed by us to be the proper construction of the act. While the question is one of first impression, we are satisfied that the cоnstruction placed on the act by the trial court was the proper one. It accords with the remedial sрirit of the act. The jury, having found that plaintiff was guilty of contributory negligence, were at liberty, within the evidence, to find that the contributory negligence contributed any proportion of the damages, even to substantially all thereof, if justifiеd by the evidence. In the present case they rendered a verdict for $2,500 less than the maximum statutory amount, and that action may well imply that they made due allowance for any offset defendant was entitled to by reason of decedent’s contributory negligence. Whether the deduction shall be made from the damages actually sustained in сase they are found to exceed the statutory limit of recovery, or from the statutory maximum limit of recovery, is а question that is not presented in this record.

We discover no error in the instructions or other matters set out in the assignments of error, and the judgment of the District Court is affirmed.