275 F. 803 | 7th Cir. | 1921
Further assignments of error deal with the admission and rejection of evidence, a consideration of which requires a more detailed statement of the pleadings and the evidence.
Defendant was charged with negligence (a) in running the train at a great speed over a portion of the track recently repaired; (b) in failing to provide the cars with proper and safe equipment and running at an excessive speed; (c) in running the train at an excessive speed over a defective switch; (d) in using cars with defective attachments and in failing to repair its roadbed and in running at a great speed under these conditions.
It appeared that the roadbed had been recently repaired, new ties having replaced old ones at a split switch not far from Sangamon; that the train was traveling some 45 or 50 miles an hour at the point when one car left the track. Other cars followed, some were turned over, and the train broke in two. Plaintiff was in a rear car, one that did not turn over. .He was, however, injured by the sudden release of the air and by the train’s derailment.
This was error. Plaintiff having charged, among other acts, defective equipment of the cars, and having relied upon the rule of res ipsa loquitur, so far as this rule may apply, it was incumbent upon the defendant to meet and disprove each of the alleged acts of negligence which would give application to the rule. The lapse of time between the accident and the inspection, at most only a few hours as to some of the cars, and less than a day as to the others, affected the weight, but not the admissibility, of this evidence.
“The carrier of passengers tor hire must omit nothing that he can do to preserve the safety of Ms passengers. The failure to exercise every degree of care that he may renders Mm responsible should any damages occur because of the failure to exercise that high degree of care. In regard to the selection and adoption of the implements or machinery suitable for the transportation of passengers for hire, a common carrier is expected under the law to use me best meáns at hand—the best machinery at hand--and with regard to the individuals whom the common carrier selects to operate their machinery or keep it intact or keep it in repair, the law says it must select such persons as do and will, and that they must use all the care necessary to prevent the happening or the occurrence of an accident; otherwise, should damages arise, the defendant would be responsible and would have to respond in money damages.
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“If the railroad company has done everything it was required to do under the law, if it has done everything that it could do to prevent the accident, and it can explain that the accident occurred in some way whereby it itself—it cannot be explained that the railroad company is responsible in some way—■ then in that case the railroad company should not be held responsible.”
This was error. The carrier was not an insum. 10 Corpus Juris, 858; 4 R. C. L. § 582, p. 1137; Louisville & Nashville Railroad Co. v. Fisher, 155 Fed. 68, 83 C. C. A. 584, 11 L. R. A. (N. S.) 926. Yet no other impression could have been gathered from the above quoted instruction. True, at other places in. the charge a rule announcing a more limited liability was set forth. But the j ury must, have concluded from the cutiré charge that the defendant was required to “use all the care necessary to prevent the happening or the occurrence of an accident; otherwise, should damages arise, the defendant would be responsible and would have to respond in money damages.” If this was not the effect of the entire charge, then the best that can be said is that a state of doubt and confusion existed.
The judgment is reversed, and a new trial ordered.