125 P. 331 | Idaho | 1912
Lead Opinion
This action was brought under an act of Congress relating to the liability of common carriers by railroad, to their employees -in certain eases (see Supp. 1909, Fed. Stats. Ann., p. 584), to recover for damages sustained by the plaintiff for personal injuries alleged to have been received by him on account of the careless and negligent operation of a switch engine hauling four loaded cars, of coal in the switch-yards of the company at Spirit Lake, in the state of Idaho, on the morning of October 4, 1910, whereby plaintiff was so seriously injured as to necessitate the amputation of one leg just above the knee and the other just above the ankle.
The railroad company defended on the ground that the accident occurred wholly on account of the carelessness and negligence of the respondent. The action ivas tried by the court with a jury and resulted in a verdict and judgment in favor of respondent for $35,000. A motion for a new trial was made and overruled by the court. The appeal is taken both from the judgment and the order denying a new trial. Errors are assigned in regard to the admission and rejection of certain testimony, the insufficiency of the evidence to support the verdict and the giving and refusing to give certain instructions.
It appears from the record that the appellant was a freight conductor about forty years of age and had been engaged during nearly all of his adult life in railroading. He had been, prior to his injury, brakeman, switchman, yard-foreman, yardmaster and conductor, and since the 14th of July, 1896, had been continuously engaged in train service and in railroad yards. He commenced work for the appellant company September 22, 1909, as a freight brakeman, and in March, 1910, was promoted to freight conductor and continued in that capacity until the time of his injury.
Respondent testified that he was walking along the scale track so that he could better examine his train, and was stooping over looking at the brake-rods and brakes to see if they were all in good order. It appears that there was a space of about ten feet between the track on which said train
It further appears that the train was running from eight to twelve miles an hour and it is not claimed by the respondent that that speed was excessive. There is very little conflict in the evidence as to the manner in which the accident occurred. Eespondent testified that he was making an inspection which was required of him by the rules of the company.
The fireman of engine No. 22 had been working as fireman on appellant’s road for a little over two years. He testified that after they hooked on to the coal-ears the bell was ringr ing all the time until after the engine stopped when Neil, the respondent was hurt; that the bell was being run by air and
The respondent testified that it was his duty to inspect his train, and that he was doing that at the time he was struck, and in order to show that it was his duty, he introduced in evidence the railroad company’s rule No. 903, which is as follows :
‘1903. Before leaving initial points, see that their trains are provided with proper tools and sufficient supplies of all kinds. Know that the cars in their trains have been inspected and that the brakes are in proper working order. Compare time with their enginemen before starting on run, and with their brakemen, flagmen and baggagemen as soon thereafter as is practicable. Show all train orders to brakemen. ’ ’
The train inspector, whose name was Baum, testified that he was inspecting train No. 54, but had not completed it and had just come around the end of the caboose when he saw Neil, the respondent, walking in the center of the “scale track” smoking his pipe; that his face was turned toward witness; that he was walking straight ahead, standing up; that respondent put his hand to his mouth, took his pipe out and put it back; that when he saw Neil he could also see engine No. 22 coming along; that respondent was perhaps a car-length or less ahead of it; he also saw Hennessy, the brakeman on respondent’s train, giving a signal to stop, but witness thought the first signal was given to set the air on train 54 for him, the second signal being a quick one; that the bell on engine No. 22 was ringing when he first saw the respondent and continued to ring until engine No. 22 stopped; that the engine was also making considerable noise with the exhaust; that the engine stopped immediately after Hennessy gave the second signal.
The brakeman on engine No. 22 testified that it was a quiet morning; that the bell was operated by air and continued to ring until after the respondent was struck; that the train was going between six and eight miles an hour; that from engine No. 54, engine No. 22 could have been seen where it hooked on to the coal-cars.
The engineer on train 54 testified that the bell was ringing as engine No. 22 passed his engine (No. 54), and continued to ring until after it stopped after the accident; that he was sitting in the cab of his engine and engine No. 22 was laboring as it went up the “scale track”; that it was a clear, quiet morning and the noise could be heard a considerable distance; that from his engine looking down the “scale track,” engine No. 22 could be seen where it coupled on to the coal-cars; that there were no obstructions there whatever; that he saw respondent from the time he left witness’ engine,
The car inspector, Baum, also testified that it was his business to inspect the train in the morning at the junction point, and that the conductor had nothing to do with it and never did it.
Hennessy, the brakeman on train No. 54, testified that he had been freight conductor on that road, and that the freight conductors never made personal inspections of the train before going out; that the car inspectors did it.
It seems that this witness stood at the caboose of the respondent’s train and that respondent was between him and the engine hauling the coal-cars when the accident occurred. He testified that he saw engine No. 22 coming up the scale track with the bell ringing and it continued to ring until the engine was stopped; that it was working steam, pulling four ears of coal, and made considerable noise; that he saw the respondent just before he was hurt walking on the “scale track,” five or sis ear-lengths from the caboose where witness was standing; that he was walking along, not stooping over, facing in. a southerly direction; when he first saw respondent, he paid no attention to him and made no sign for him to get off the track, because he thought respondent would get off the track; that it was a usual thing for employees to walk on the track around the yards; that later he gave the respondent a sign to get off the track; that at that time he
The respondent testified that he was walking along on the “scale track” smoking his pipe, stooped over and looking under his train to see that the brake rods, etc., were all in condition, and that he did not hear the bell nor the train until the engine was upon him. Some of the witnesses testified that when they saw respondent walking on the track he was erect and smoking a pipe and that he was not stooped over.
The foregoing statement of facts may be summarized briefly as follows:
A freight conductor, experienced in his work and familiar with switching-yards and their operation, stepped upon a 'track which he knew was constantly used for switching purposes, and walked along that track for several hundred feet without giving any attention to the track behind him. A switch engine attached to four loaded cars, with the bell ringing and the engine laboring up a one per cent grade, struck and injured him. He was seen by one of the employees on the engine some 500 feet away, apparently in the full possession of his faculties, and recognized as an employee and known by that fireman to be a conductor and to be familiar with his surroundings. The fireman paid no further attention to him, but presumed and assumed that he would step off the track before the engine reached him, in identically the same manner that another employee, Gregory, had stepped off the same track when engine No. 22 passed him.
A motion for a nonsuit was made at the close of plaintiff’s testimony and renewed at the end of all of the testimony and denied. The appellant also moved for a directed verdict, which was denied.
1. We will first determine whether said act of Congress is applicable to the facts of this case.
That act of Congress refers only to interstate commerce, abrogates the fellow-servant rule, extends the carrier’s liability to cases of injury and death, and restricts the defense of contributory negligence and assumption of risk.
In Mondon v. New York, N. H. & H. R. R. Co., 223 U. S. 1, 32 Sup. Ct. 169, 56 L. ed. 327, said act was construed and held to be constitutional. Referring to the theory of that act, the court in Fulgham v. Middle Valley R. R. Co., 167 Fed. 660, said:
“The theory of this legislation is that the public should share the misfortune of the families of those who are injured or killed in the giinsi-public business in which railroads are engaged. So it is provided, in substance, where the employee is injured in the service of a railroad while engaging in interstate commerce, he shall have a cause of action for that injury, and this action he can maintain in his own name, although he may have by his own negligence contributed to the injury; but the damages in such case shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. Here the common-law doctrine of contributory negligence is abrogated in the interest of the employee, and the doctrine of comparative negligence substituted which pro tanto encourages care and diligence on the part of the employee. ’ ’
Under sec. 1 of said act, it is provided that the railroad company shall be liable in damages to any person suffering injury or death resulting in whole or in part “from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency due to its
Then, was the respondent engaged in interstate commerce at the time he was injured? His train was made up, consisting of about twenty cars, with intrastate and interstate freight. He had gone to the engine on the front end of his train and had a conversation with his engineer, and had given him his clearance card and was going back to his caboose. It appears from the evidence that at that time the ear inspector was inspecting the respondent’s train, and the respondent, instead of returning to his caboose on the open space between the track on which his train was standing and the “scale track,” on which the switching was being done, went upon the “scale track” and, according to his testimony, was inspecting his train as he proceeded on his way to the rear of his train. Whether it was necessary for the conductor to return from the engine to the caboose on his train does not appear, but it does appear that it was not necessary for him to walk on the “scale track.”
In Phila. B. & W. R. Co. v. Tucker, 35 App. D. C. 123, which involved the negligent killing of one Tucker, the court said:
“When Tucker was killed he was upon the premises of the defendant in response to its call, to assume the duties he had been engaged by the defendant to assume, and for their mutual interest and advantage,” and there laid down the rule that the relation of master and servant, in so far as the obligation of the master to protect his servant is concerned, commences when the servant, in pursuance with his contract with the master, is rightfully and necessarily upon the premises of the master.
It is contended by counsel for appellant in the case at bar that the respondent in walking upon said scale track could not have been engaged within the scope of his employment; that there was nothing in his employment requiring that he should be on said “scale track”; that, on the contrary, the proper discharge of his duties would require that he should not be there. While it may not have been his duty, and was carelessness on his part, under the facts of this ease, to walk upon said “scale track,” still we think he was engaged in interstate commerce to the extent of getting his train ready .for that purpose. It seems to us that preparation was being made to have his train leave Spirit Lake, and that he was engaged in getting his train ready for the transportation of freight both within the state and beyond its boundaries, and
2. The next question presented is whether negligence has been shown on the part of the appellant. The respondent was an employee of varied and long experience in railroading; he was of mature years; in the full possession of his faculties; he had been employed by the appellant and had had considerable experience in, and was thoroughly familiar with, said yards, the tracks and the use to which such tracks were put. He knew that upon the switch track cars were apt to be moved at any time, and regardless of his knowledge and experience, he went upon the switch track without paying any heed or attention to the movement of the switch engine or to the ringing of the bell which could be heard on the bright, clear day on which the accident occurred at least a thousand feet, or to the noise made by the engine in its laboring up a one per cent grade with four loaded coal-cars. The exhaust of the steam and noise of the cars could be heard at least a quarter of a mile. The train was not running to exceed from eight to twelve miles an hour. The noise of the train and the ringing of the bell were heard by persons much farther away than was the respondent. Could the respondent, regardless of the consequences, carelessly or heedlessly pay no attention to the movement of the train under all of those facts and circumstances and legally charge the appellant with negligence? We have not been able to find, nor have we been cited to, a single decision where a railroad company has ever been held guilty of negligence under such circumstances and facts as surround this ease. It is true, respondent testified that he did not hear the train nor hear the bell ring. He must have become oblivious to his surroundings and so absorbed as to have lost all sense of sight or sound. But there is no evidence to show that the engineer or fireman had any reason to believe that respondent was in that condition. Five or six witnesses on behalf of the defendant testified that the bell was ringing up to the time respondent was struck by the engine. These several witnesses also testified that the engine was laboring very hard and making considerable noise that
The supreme court of the United States in Aerkfetz v. Humphreys, 145 U. S. 418, 12 Sup. Ct. 835, 36 L. ed. 758, held that a person in charge of a switch engine in a railroad-yard, used for the purpose of moving cars, has a right to act on the belief that the various employees in the yard, familiar with the continuously recurring movements of the ears, will take reasonable precaution against their approach, particularly where the cars are moving so slowly that ordinary attention on their part would enable them to avoid them, and that a railroad company is not guilty of negligence as against an employee, in moving its cars by a switch engine in its yards slowly, without sending a man in front of the cars to give notice to employees of their approach. In that case the court held that an abundance of time elapsed between the moment the cars entered upon the track upon which the employee was working and the moment they struck him, and that there could have been no thought or expectation on the part of the engineer or any other employee that the employee thus at work in a place of danger would pay no attention whatever to his safety, and that the engineer was not bound to assume that any employee, familiar with the manner of doing business, would be wholly indifferent to the going and coming of the cars, and that the engineer had the right to act on the belief that the various employees in the yard, familiar with the continuously recurring movement of the cars, would take reasonable precaution against their approach, and that it could not be held under such circumstances that the defendants were compelled to send someone in front of the cars for the mere sake of giving notice to employees, who-had full knowledge of what was to be expected.
It seems to us that the case at bar is a stronger case for the defendant upon the facts than was that ease. In the case s.t bar the bell was ringing, the engine laboring up the grade,
In Anderson v. Great Northern Ry. Co., 15 Ida. 513, 99 Pac. 91, this court, speaking through Chief Justice Ailshie, said:
“When an engineer sees an adult on the track ahead of him, he ordinarily has a right to presume that he will get off the track before the train reaches him. ’ ’
Smith v. Altanta & C. R. Co., 130 N. C. 344, 42 S. E. 139, was a case very similar to the one at bar. The plaintiff was engaged in painting a switch target on one of the tracks of the defendant, the track being straight for several hundred feet, and in doing his work he was compelled to put himself in danger of passing trains, and while he was so engrossed he was struck by a switch engine, and in passing upon that case the court said: “The plaintiff labored under no infirmity. He was sober, intelligent, occupied a position where he could do his work with entire safety if he would only keep watch for the passing trains,” and it was there held that an engineer who sees a person, apparently old enough to understand the necessity for care and watchfulness, walking along in front of a moving engine, may act upon the assumption that the person will step off the track in time to avoid injury. In the case at bar the fireman who saw the respondent on the track, knew it was the conductor, and paid no more attention to him, assuming, of course, that he would get off the track in time to protect himself. In the Smith ease the court said:
“The fault, then, with his honor’s charge, as we see it, is that he allowed the jury to consider, under the first issue, the continuing of his work by the plaintiff as evidence that he was engrossed in his work, and on that account was inadver*94 tent to the approach of the train. The engineer, it appears to ns, had the right to assume that the plaintiff, in possession of all his faculties, and not hampered by any obstructions that would have prevented his instantaneous avoidance of danger, would have stepped out of danger. It would be a difficult matter, indeed, for any important railroad system to carry on its business if each engineer of a switch engine is to stop his engine whenever he sees an employee continuing his work upon the approach of the engine, or the employee is to stop his work except for the second to step out of the way of the train.”
In Pennsylvania Co. v. Myers, 136 Ind. 242, 36 N. E. 32, the supreme court of Indiana said:
“And, second, even if appellant’s servants had known of the presence of the deceased on the track in front of the moving train in time to have stopped it before the collision, they had a right to presume that he would step off the track in time to avoid injury, up to the last moment before he was struck.Therefore, ordinary care on their part did not require them to anticipate that he would not so step off, and did not require them to stop the train, and send a force forward sufficient to remove him.”
In the case of Louisville & N. R. Co. v. Cronbach, 12 Ind. App. 666, 41 N. E. 15, the court affirmed the doctrine laid down in the last above cited case. Referring to the presumption that one walking on a railroad track would step off the track in time to avoid injury, the court said:
“In the light of this presumption, there is no evidence, either direct or circumstantial, in our opinion, authorizing the inference that they had reasonable ground to believe, before the engine struck him, that Cartmell was unconscious of his danger, or that he was unable to avoid it. On the contrary, they may well have presumed that Cartmell knew before the engine reached him that it was moving toward him, and that he would step from the track before he was overtaken.”
In Campbell v. Kansas City etc. R. Co., 55 Kan. 536, 40 Pac. 997, the court said:
*95 “It is contended that Campbell was seen 500 feet ahead of the engine, and therefore the engineer should have stopped the train before reaching him. An engineer, however, is not bound to stop a train whenever he sees a person ahead upon the railroad, hut has a right to assume that an adult person, apparently in the possession of his faculties, will exercise his senses, and step out of the way of danger before the engine reaches him. ’ ’
And later in the decision the court said: “Campbell was a man of mature years, who had the use of his faculties; and, as he was moving and apparently capable of taking care of himself, the engineer had a right to presume until the last moment that he would leave the track, and not be run over.”
In Cincinnati etc. Ry. Co. v. Long, Admr., 112 Ind. 166, 13 N. E. 659, which was a case of a switchman, familiar with the locality and movement of the trains at the place where he was injured, the court in discussing the ease, said:
“Persons in the control of railroad trains have a right to presume that men of experience will act reasonably in all given contingencies. They are not bound to anticipate and provide against extraordinary, unusual, and improbable conditions which involve inattention on the part of others, and their duty to persons who are thus situate only begins when they have good reason to suppose that such persons are unconsciously in peril, or disabled from avoiding it. It is a presumption that a person of mature age, and in the possession of his faculties, will exercise care for his own safety, and that he will not go to or remain in a perilous position when a slight effort would carry him to a place of safety. Accordingly, a watchman or lookout on a train, moving slowly, with bell ringing, may presume, when he observes a man walking soberly on or near the track, that such person has observed the train, if by the exercise of care he could have observed it. He may therefore reasonably presume, unless something indicates the contrary, that the person on the track will step aside, so as to avoid any injury”; and the court concludes that the facts of that ease did not make a case of negligence against the railroad company.
In Norfolk & W. Ry. Co. v. Gesswine, 144 Fed. 56, 75 C. C. A. 214, which opinion was delivered by Judge Lurton, now on the supreme bench of the United States, the court held that in an action for death of a brakeman, by collision with a passing train, as he was repairing the track, an instruction that his place of employment was a dangerous place, and that, if he was hurt while trains were being managed and operated in the usual and ordinary way, there could be no recovery, was proper.
The case at bar was not tried upon the theory that no warnings were given, but on the theory that it was the duty of the railroad company to stop its train and notify the respondent to remove himself from the track in order to avoid injury. Under the law, before the plaintiff could recover in this action, it must be shown that those in charge of the switching train knew that he did not hear the warnings or would not heed them and would not get off the track, and that they then wantonly continued to run the train and as a result injured him.
In Copp v. Maine Cent. R. Co., 100 Me. 568, 62 Atl. 735, it was held that engineers running locomotives are not bound to stop or even decrease the speed of the locomotive merely because they see persons walking upon the track. They may ordinarily assume that such persons have made themselves aware of the approach of the locomotive and will seasonably leave the track for its free passage, and held that if such engineer makes all possible effort to stop the locomotive as soon as he has reason to believe that a person walking upon the track is in fact not aware of the approach of the locomotive, he is not guilty of negligence.
There is nothing in the record to show, or which proves or tends to prove, that the engineer or fireman on the switch train failed to make every possible effort to stop the locomotive after they, or either of them, had reason to believe that the respondent was not aware of the approach of the train. See, also, Everett v. Los Angeles etc. R. Co., 115 Cal.
It is held by many decisions that everyone about a switch-yard, as an employee or as a trespasser, must be taken to know the hazards of the situation and that safety requires the utmost vigilance. The danger is apparent, and every instinct of self-preservation sounds a loud warning. (Erickson v. St. Paul & D. R. Co., 41 Minn. 500, 43 N. W. 332, 5 L. R. A. 786.)
In the case of Norfolk & W. Ry. Co. v. Dean’s Admx., 107 Va. 505, 59 S. E. 389, the court, referring to the action of the conductor, said:
“If the emergency-brake had been applied at the instant Whitworth discovered the presence of Dean upon the track, the accident would have been averted; but in the honest exercise of his discretion, in the light of his long experience, he did not at that moment consider Dean in a position of peril.”
So in the ease at bar. When the fireman on the switch engine saw the conductor walking leisurely on the track, in the honest exercise of his discretion and in the light of long experience, no doubt he did not at that moment consider the respondent in any peril whatever. (Teel v. Ohio Riv. R. R. Co., 49 W. Va. 85, 38 S. E. 518; Raines v. Chesapeake & O. Ry. Co., 39 W. Va. 50, 19 S. E. 565, 24 L. R. A. 226.)
As said in the last-cited case, we know of no rule and can find no case making it the duty of the engineer, under facts and circumstances like those in the case at bar, not to approach a man walking on a track nearer than the distance within which the train can be stopped. If the engineer saw the respondent on the track, and could have stopped the train, still he was fully justified, knowing him to be the conductor, in believing up to the last moment that he would move out of the way. (Norwood v. Raleigh etc. Ry. Co., 111 N. C. 36, 16 S. E. 4; Louisville & N. R. Co. v. Black, 89 Ala. 313, 8 South. 246.)
In Exum v. Atlantic Coast Line R. Co., 154 N. C. 408, 70 S. E. 845, 33 L. R. A., N. S., 169, the court said:
*98 “In this class of eases it will be found generally that, where the company has been held liable, it is in cases where the party injured'was not upon equal chances with the engineer to avoid the injury, where there was something suggesting the injured party’s disadvantage or disability, as where the party injured is lying on a railroad track, apparently drunk or asleep, or is on a bridge or trestle, where he cannot escape, or cannot do so without great danger.” (Smalley v. Southern Ry. Co., 57 S. C. 243, 35 S. E. 489.)
In a note to Central R. R. etc. Co. v. Vaughn (93 Ala. 209, 9 South. 68), 30 Am. St. 50, by Mr. Freeman, it is said:
“The true principle, it is conceived, is that the engineer should see that the track is clear, but that, when an obstruction is perceived, the proper course to adopt will depend upon whether it is a living or inanimate object, and if it is a living object, whether it is an intelligent human being, capable, under ordinary circumstances, of discerning the means of securing safety, or a brute, which has no guide but mere instinct. If the object seen is an intelligent human being, it seems to be generally agreed that the engineer has a right to presume that he will get out of harm’s way before the engine reaches him, and that it is not negligence to act upon that presumption.”
In Norfolk & Western R. Co. v. Johnson’s Admr., 103 Va. 787, 50 S. E. 268, the court said:
“In the case at bar there was nothing to put the engineer upon his guard. The preponderance of the evidence shows that the plaintiff’s intestate was doing what was done daily at that point. The engineer was confronted with no unusual situation, and he was not negligent, under such circumstances, in treating the plaintiff’s intestate as free from danger.”
In Waldron v. Boston etc. R. Co., 71 N. H. 362, 52 Atl. 443, the court said:
“It is therefore immaterial whether the engineer in fact saw the deceased before the accident, or in time to have avoided the collision; for the question is, not what he might have done, but what his duty to Waldron required, in view of the latter’s apparent duty and ability to protect himself.” (Atlantic Coast Line R. Co. v. Miller, 53 Fla. 246, 44 South. 247.)
In the case at bar, when the fireman saw the respondent on the switch track 500 feet ahead of the engine and the engine was hauling four cars of coal up a one per cent grade at the rate of about ten miles an hour, with the bell ringing and the train making a noise that might easily be heard a quarter of a mile, the fireman and engineer were confronted with n& unusual situation and the question presented here; is not what the engineer might have done, but what jhis duty to the respondent required, in view of the latter's apparent duty and ability to protect himself by stepping off the track in time to avoid any injury. The engineer had a right to assume that the respondent, being a conductor, was in possession of his faculties of '.hearing and seeing, and to assume that he would not become so engrossed or engaged in his own thoughts as not to protect himself by stepping off the track before the engine struck him, for under the great weight of authority, even if the engineer had seen him up to the time the engine got to within a hundred feet of him, he had the right to assume that the respondent would protect himself from injury by stepping off the track. It would not have been negligence for the engineer to act upon that presumption. The respondent was ar. intelligent human being, had been long engaged in railroad service; had had large experience in.switch-yards and as brakeman and conductor on trains, and the engineer had a right to expect him to protect himself from injury, under the circumstances, as any man of ordinary judgment and prudence would do. It would be unreasonable for this court to hold, under the facts of this case, that the engineer should haw. stopped his train and sent forward a brakeman to invite the conductor to get off the track, as under the facts of this ease and the law applicable thereto, there was no negligence whatever shown on the part of the appellant.
“It arises at the moment when he is seen to be in a perilous situation; then, but not until then, the effort to stop the train must commence. In fact, the language of most of the decisions which speak upon this question, speak of the obligation of care and effort in favor of the trespasser as arising at the point of time when his perilous situation is discovered or is known; they must have become aware both of his presence and his peril.”
Conceding that i^ie fireman on said engine knew of the presence of the conductor on said track, he had not become aware of the conductor’s peril until Hennessy gave the “washout” signal to stop the engine, and that was then too late to protect the respondent from .injury. Could it reasonably be presumed or assumed by the fireman and engineer that a conductor, familiar with the switching-yards, the methods used in switching and making up - trains, and the use to which said “scale track” was put, would walk upon said track and become so absorbed in a matter that was or was not his duty to perform as to become oblivious to, and unconscious of, the ringing of the bell, the noise made by the laboring engine and cars, and the exhaust of steam? And was it negligence on the part of the company if its fireman and engineer presumed and assumed that a conductor, under such facts and circumstances, would step off the track? I think not. They may have known of his presence on the track, but certainly under the facts they did not know that he was in peril until it was too late to stop the train and prevent the accident. In railroad yards, where a large amount of switching is done, often many men are employed at various kinds of work that requires them to pass over or remain on some -of the numerous tracks in doing their work, and if an engineer were required to stop his engine within a hundred feet of such men. if they did not step off the track, the workmen would lose a great
(3) The act of Congress under which this action was prosecuted provides that contributory negligence on the part of the plaintiff should not be a bar to recovery, but that damages should be diminished by the jury in proportion to the amount of negligence attributable to such employee. The trial court gave the proper instruction upon this question, and also advised the jury that the plaintiff was guilty of contributory negligence, and instructed them that it was their duty to diminish the damages in such proportion as- they found his negligence contributed to the injury. The court also instructed the jury that they should reduce the amount of verdict by the amount of money he had received from the railroad company subsequent to his injury. It would appear from the verdict of $35,000 that the jury paid no attention whatever to those instructions of the court. The evidence shows that the company paid him $987.85 subsequent to the injury, and it does not appear that the jury paid any attention whatever to the instruction of the court upon that question.
(5) It is suggested by counsel that the doctrine of the “last clear chance” is applicable to this case. We are not in accord with that suggestion, as it does not appear that the appellant presumed, or was bound to presume, that the respondent would not step off the track before the accident occurred,' and when the engineer first realized that the respondent was in peril, the evidence clearly shows that he stopped his train within eighty feet, which was as quickly as it could have been stopped; and it does not appear that by the exercise of reasonable care and prudence the engineer could have prevented the accident.
(6) It is next contended that the verdict of $35,000 is excessive, and shows that it was rendered through passion and prejudice and without due deliberation. The respondent testified that he was forty years of age; that his salary as conductor averaged about $125 a month, which, if he worked continuously every month in the year, would amount to $1,500
(7) Some errors are assigned as to the admission and rejection of certain evidence, but we do not think it necessary to pass upon those any further than to say that there was not such error as would warrant a reversal of the judgment for that reason alone.
(8) The giving and refusing to give certain instructions is assigned as error. We will not undertake to repeat the instructions here, but will refer to them by number as they appear in the record.
The giving of instructions Nos. 1 and 3 was not error, as they correctly stated the law. Instruction No. 4 should not have been given. Instruction No. 14, as modified and given by the court, was a correct statement of the law. Instruction No. 6 should not have been given, as there is no evidence in the record showing that the respondent was oblivious to danger while walking on the track. Instruction No. 5, as requested by the defendant, correctly stated the law and should have been given. It was not error for the court to refuse to give instructions Nos. 10, 16 and 18 and 20 as requested by defendant. It was error for the court to refuse to give instructions Nos, 11, 15 and 17, as they correctly stated the law. Instruction No. 19, requested by defendant, as modified and given by the court, correctly stated the law.
For the foregoing reasons the judgment must be reversed and a new trial granted, and it is so ordered, with costs' of this appeal in favor of appellant.
Concurrence Opinion
Concurring Specially. — I agree with the general rule of law as stated by Mr. Justice Sullivan. This court has followed the most advanced and liberal rule that has
Since this case must be again tried, I refrain from any further comment on the evidence on this point.
Concurrence in Part
Dissenting in Part, and Concurring in Part and in the Judgment. — I am unable to agree with that portion of the opinion written by Mr. Justice Sullivan in which he discusses the law of negligence on the part of the railway company, and applies the same to the facts proven in this case.
It appears that both the engineer and fireman were in a position to have seen the respondent upon the track from the time that Moore first saw the respondent up to a point not more than a ear’s-length distant from the respondent at the time he was struck.
It is also shown by the evidence that after the respondent was seen by Moore, who was fireman on the engine which struck the respondent, no effort was made by either the fireman or the engineer upon the engine to give the respondent any different signal of the approaching of such engine than was being given by the ringing of the bell and the noise from the engine before the respondent was seen by Moore, the fireman.
There is no evidence to show that during the time intervening between the time Moore first saw the respondent upon the track and the time the engine struck the respondent, either the engineer or the fireman were in any way engaged so as to prevent them from seeing the respondent during that period of time, and no reason given why they did not again look down the track and see whether the respondent was leaving or had left the track after he had first been seen. With the knowledge of the company that the respondent was upon the track, and that if he did not leave it he would be struck
Mr. Justice Sullivan says in his opinion, after reviewing a number of cases from other courts: "It would be unreasonable for this court to hold under the facts of this case that the engineer should have stopped his train and sent forward a brakeman to invite the conductor to get off the track, as under the facts of this case and the law applicable thereto there was no negligence whatever shown on the part of the appellant.” The substance of this statement is repeated a number of times in the opinion, and it would seem to be the rule announced in that opinion. I cannot approve this rule.
As I understand the general rule of law applicable to the facts of this case, it is, that one’s own negligence in such cases precludes recovery, subject to the qualification that where the defendant has discovered or had knowledge of the peril of the plaintiff’s position, and it is 'apparent that the plaintiff makes no effort whatever to escape therefrom, the duty becomes imperative for the defendant to use all reasonable care to avoid the injury, and that if this is not done, the defendant becomes liable, notwithstanding the negligence of the plaintiff or deceased. This rule, in my opinion, is applicable to the facts shown by the evidence in this case. I do not believe that where a railway company, operating a train upon its right of way, either upon its general track or in the yards where trains are transferred and made up, after a danger or peril becomes apparent to those in charge of the train, and after it is brought to the knowledge of the employees in charge of such train that the danger is not recognized or appreciated by a person passing along the track in front of the train, such facts can excuse the company from exercising reasonable effort to stop the train and prevent the injury.
From an examination of the cases cited in Mr. Justice Sullivan’s opinion, and other eases, it will be observed that
This court, also, in my judgment, in the ease of Anderson v. Great Northern Ry. Co., 15 Ida. 513, 99 Pac. 91, announces the same general principle of law, and this rule should be adhered to by this court in a case where the facts shown are of the same general character as the facts in this ease.
I concur in the opinion of Mr. Justice Sullivan in his discussion of the Employer’s Liability Act enacted by Congress in 1908 and the amendment made in 1910, and I also concur in the opinion as to the judgment being excessive. It is