66 F. 931 | 9th Cir. | 1895
The defendant in error was the plaintiff in the court below in an action against the railway company to recover damages for personal injuries received by him on the Í6tk day of August, 1891. The plaintiff was a brakeman in the employment of the railway company. At the time of his injury he was a member of the crew of east-hound freight train No. 28. At Clarnie station, about: seven miles from Portland, there is a spur or side track about one mile in length, extending to a stone quarry. In the regular course of the railway company’s business, the train was required to take “blind siding reports”; that is, they were to ascertain at all sidings or spur tracks, such as that at Clarnie, the number of cars upon such tracks, and the condition of the same.
The principal question for consideration upon the writ of error concerns the instruction of the court to the jury in regard to the condition of the defendant’s track, and the obstruction to the same by reason of the brush. It is said that the court erred in refusing the instruction asked for by the defendant, and in charging the jury as follows:
“It is the duty of a railroad company to be careful and prudent in providing a safe roadbed for its employés, and in keeping the same free from obstructions; and if it fails in this respect, and its employés are injured thereby, without fault on their part, the company is liable. There is no arbitrary rule as to how near the track brush or timber may be left standing. This is a matter that depends upon circumstances, the character of the road, the use to which it is put, the difficulty or expense of clearing, and the danger, if any, to which those engaged on the road are subject in consequence of such nearness. It is a question that addresses itself to your judgment as practical men, whether the conduct of the company in this respect was reasonable under all these circumstances.”
“The question of overhanging brush, which the plaintiff claims was of such a character as that it obstructed the view of himself and trainmen while passing over the side track in question, is material in this case, and you cannot consider these claims of the plaintiff in determining the question of whether or not there was any negligence of the defendant upon which the plaintiff can recover.”
It is contended by the plaintiff in error that the presence of the brush overhanging the track on the spur was one of the conditions of that track, visible to the plaintiff, and that he assumed all the risks incident thereto. In support of that contention reference is made to Kohn v. McNulta, 147 U. S. 238, 13 Sup. Ct. 298; Southern Pac. Co. v. Seley, 152 U. S. 145, 14 Sup. Ct. 530; and Tuttle v. Railway Co., 122 U. S. 189, 7 Sup. Ct. 1166. In the first of these cases the plaintiff was injured while coupling freight cars. The injury was said to have been occasioned by the fact that the cars were fitted out with double deadwoods or bumpers of unusual length; but it appeared that cars constructed in that manner were not unusual upon that track, and that the risk of coupling them was an obvious one, and required no special skill or knowledge for its detection. It was therefore held that the risk of coupling such cars was one of the ordinary risks incurred by the plaintiff, and that he could not recover. In the case of Southern Pac. Co. v. Seley an employé of the railroad company was injured, while coupling cars of the company, by putting his foot into an unblocked frog at the switch, whereby his foot was caught and held, and he was thrown down and killed. In an action by his administratrix for the damages it was held that Seley must be assumed to have entered into and continued in the employment of the railroad company with full knowledge of any danger which might arise from the use of unblocked frogs. In Tuttle v. Railway Co., the accident would not have happened to the employé but for the sharpness of a curve of the company’s track, and it was contended that the construction and maintenance of a track with such sharp curves was itself negligence. But the court held that the perils from a sharp curve were seen and known, and that they were not like the defects of unsafe machinery, which the employer has neglected to repair, and which his employes have reason to suppose is in proper working condition. The court said:
“Tbe danger existed only on the inside of the curve. This must have been known to him. It would M presumed that, as an experienced brakeman, he did know it, for it was one of those things which happened in the course of his employment under such conditions as existed here.”
But it is not apparent in the case before the court that the dangerous condition of the track, owing to the overhanging brush, was one of the conditions of its construction, or that such danger was necessarily apparent to an employé of the road, however skilled or experienced. The condition of the brush by the side of the track is not a fixed one. It is not like the curves, or the embankments, or the established structures of the road. Nor was this spur a part of the track which was in daily use. The condition of the brush was a
“The difference between the kind of knowledge called into action in determining the sharpness of a curve that is needed in running a railway line at a*935 given jicint smrt that exorcised in determining whether the exigencies oí a given Riniation require that, some escape or outlet should he furnished for water liable to come down a natural waterway intersecting the line of railway is so great that it renders the rule applicable to the one case inapplicable to the other. The training and knowledge of an engineer is not needed to enable one to understand the action of water in rushing down a gully or similar waterway, nor to know, if an obstruction like a solid railway roadbed is built across a waterway, down which any considerable amount of water may- be expected to pass, that unless an outlet is given to it, it must, of necessity collect against the roadbed, and perchance overflow it. Such facts are matters of common knowledge, gathered from the experience and observation of every-day life.”
The distinguishing principle between these two classes of cast's is that in the one the defects are visible find apparent, and the dangers therefrom are presumed to he known and assumed, while in the other the danger is not seen, and no such presumption arises. The condition of (he switches and frogs, the degree of the curvature of the track, are all fixed conditions, which are visible to the eye. The experienced employé knows that he is to serve the railroad company with its road and cars in the condition in which he sees (hem, and he knows the danger that may attend such, service, tint he does not necessarily know, and he cannot be expected to meet, dangers which arise from changes in those conditions, however apparent may be the causes which produce them. He is not presumed to know that the rains and Hoods will have covered the track with earth and sand at a place where common prudence would require that provision he made against the occurrence of such an obstruction. He is not required to assume that ice and snow will be allowed negligently to accumulate upon the track and switches, or that other obstructions will be placed on or about the same, so as to render the track unsafe, or his work more dangerous than it otherwise would be.
But it is urged that the plaintiff was in a position to see the condition of the track upon the spur, and that it was his duty to govern the movement of the train in accordance with (lie danger which, if it existed, must have been apparent lo him. There can be no doubt that the plaintiff was, at the time of the injury, practically in charge and control of the train. As the train was going, he was the foremost of the employé» stationed thereon, and it was his duty to look out for obstructions. If danger was apparent to him from the. fact that the overhanging brush obstructed his view of the track, it wa.s his duty to cause the speed of the train to be slackened, and to allow it to proceed no faster than was consistent with the safety of himself and of his coemployes. He was as much .required to adjust the movement, of the train to the circumstances of his shortened range of vision and the danger that might result therefrom as he would have been had his view been obscured by fog or darkness. The law does not require a railroad company to clear its track of brash. It clearly has the right to suffer brush to grow thereupon to any extent it sees fit, provided it does not lead its employés into an undisclosed danger. If the employés can see the danger, they have the means of avoiding it. But there was evidence in this case tending to show that the brush which obstructed the view
It is assigned as error that the court excluded evidence offered by the defendant tending to prove that the plaintiff knew the condition of the track where the accident occurred, and that he therefore assumed the risks incident thereto. The defendant had not pleaded such knowledge upon the part of plaintiff, and the ruling of the court was in accordance with the doctrine established by the authorities. 14 Am. & Eng. Enc. Law, 844; Mayes v. Railroad Co., 63 Iowa, 562, 14 N. W. 340, and 19 N. W. 680; Hulehan v. Railroad Co., 68 Wis. 520, 32 N. W. 529; Railroad Co. v. Orr, 84 Ind. 50. The doctrine of these decisions is that the assumption of the risk after knowledge of the defects is matter of defense in the nature of a waiver of the right to recover for the defendant’s negligence, and must be pleaded.
It is further assigned as error that the court, in instructing the 'jury upon the subject of contributory negligence, concluded the charge with the following words:
“If he fell in the exercise of reasonable care, no matter whether he fell while stepping off one car to another, if it was caused by the jolt of the cars, the company was negligent in that respect.”
It is argued that the plaintiff saw the cars approaching, and that from his experience he was able to judge what the effect of the shock would be, and that, instead of remaining in a place of safety, and taking precautions by bracing himself or by holding to the sides of the car, he assumed that the shock would not be dangerous, and voluntarily stepped forward, and placed himself in a position of the greatest danger. It is contended that the instruction permitted the jury to find that the plaintiff could recover, even while stepping from one car to the other, provided his fall was caused by a jolting or the bumping of the cars; occurring at the time. This