3 F. 353 | U.S. Cir. Ct. | 1880
The plaintiff sued defendant, as receiver df the Lawrence, Leavenworth & Galveston Railroad Company, to recover damages for personal injuries received while in defendant’s employ. The defendant was, at the time of the accident, engaged in operating said railroad under an appointment from this court as receiver thereof. The plaintiff sought to recover upon two grounds — First, that his co-employe, one Bowles, who, at the time of the accident, was acting as yard master, was guilty of negligence in running certain cars, to be coupled together, at a greaiand dangerous speed, causing the injury to plaintiff, who was engaged in coupling; and, second, that defendant was guilty of negligence in using cars dangerous and defective in their construction, whereby plaintiff was injured. It was alleged that the coupling pin was old and bent, and that the bumpers were improperly constructed and located, and were thereby rendered exceedingly and unnecessarily dangerous. Issue was joined upon these allegations, the cause was tried before a jury, and there was a special finding by the jury as follows:
The jury was directed to answer the following questions: “If the jury find the defendant guilty of negligence, which
An act of the legislature of Kansas, entitled “An act to define the liability of railroad companies in certain cases,” approved February 26, 1874, provides as follows: “Every railroad company organized or doing business in this stale shall be liable for all damages done to any employe of such company in consequence of any negligence of its agents, or by any mismanagement of the engineer or other employe, to any person sustaining such damage.” Comp. Laws of Kansas, 1879, c. 84, § 29, p. 784.
The defendant moves to set aside the verdict, and for a new trial, upon the ground that the court erred in charging the jury that the statute was applicable to the case; and he argues with much force that a receiver, engaged in the operation of a railroad, is not a “railroad company, ” within the ■meaning or the act. In the view I take of the case it is not necessary to decide this important question.
By the special finding the fact is established satisfactorily, I think, that the injury resulted from the negligence of the defendant in furnishing defective machinery for the use of his employes in performing the very dangerous duty of coupling cars. The coupling-pins were old and bent, and the bumpers or dead-wood were not properly arranged, so that the whole was cumbersome, inconvenient, and dangerous. This was a plain violation of duty on the part of the defendant.
Tin's presents the question whether, upon the facts found by the jury, the defendant is liable independently of the statute, and upon the principles of the common law. The rule of the common law is that a master is not liable to his servant for the negligence of a i'ellbw servant, and it was to abrogate this rule, in the. state of Kansas, that the statute was enacted. But the common-law rule has never, to my knowledge, been carried so far as to permit the master to exempt himself from the consequence of bis own personal negligence by showing that one of his servants (not the party injured) has been likewise negligent. In the present case the master was negligent, while the plaintiff, the injured party, was not negligent.
This makes out a ease at common law, notwithstanding the negligence of Bowles, the fellow servant. The plaintiff recovers upon the ground of the negligence of the defendant, which is, of itself, a good and sufficient ground. The doctrine of contributory negligence has no application to such a case. That doctrine applies only to cases of negligence on the part of the person injured.
The true doctrine of the common law is that the master is liable to Ms servants, as much as to any one else, for the consequence of his own negligence; and it is no defence for him to show that the negligence of a fellow servant (for which he was not responsible) also contributed to bringing about the injury. Shearman & Redfield on Negligence, § 89; Fifield v. Northern R. Co. 42 N. H. 225; Hough v. Railway Co. 100 U. S. 213; Cayzer v. Taylor, 10 Gray, 274; Paulmier v. Erie R. Co. 5 Vroom, (N. J.) 151, 157.
In Cayzer v. Taylor the supreme court of Massachusetts state the rule as follows: “But we are not prepared to say that if one
Motion for a new trial overruled. An order for payment of the plaintiff’s judgment will be entered.-
Foster, D. J., concurring.