141 F. 905 | 8th Cir. | 1905
after stating the case as above, delivered the opinion of the court.
The question presented by the record is whether, under the law of Wisconsin and the general law of negligence, a case is presented for a jury where it is shown that a train consisting of eight freight cars, a passenger coach, locomotive engine, and tender was run on a down grade on a rough track, the engine operated backward, at the rate of from 35 to 40 miles an hour to a point where the track curves, and it commences rapidly to ascend an up grade, with breakage of the 1
“The rule Is that the danger from the defects of the railroad or machinery furnished the employe must have been so obvious and threatening that a reasonably prudent man in his situation would have avoided them, in order to charge the injured servant with contributory negligence because he continued-in the discharge of his duty, and thereby assumed the risks. Railway Co. v. Jarvi, 10 U. S. App. 439, 450, 3 C. C. A. 433, 437, 53 Fed. 65, 69; Kane v. Railway Co., 128 U. S. 91, 94, 9 Sup. Ct. 16, 32 L. Ed. 339; Railroad Co. v. McDade,. 135 U. S. 554, 570, 573, 10 Sup. Ct. 1044, 34 L. Ed. 235; Cook v. Railway Co., 34 Minn. 45, 24 N. W. 311; Myers v. Iron Co., 150 Mass. 125, 22 N. E. 631, 15 Am. St. Rep. 176.”
We must not lose sight of the fact, however, that the danger to which the deceased was subject under the circumstances detailed in the evidence resulted from a combination of alleged negligent acts on the part of defendant and its engineer. Neither one, perhaps, standing alone,, would have caused the accident, but the rough and uneven track, the excessive speed, the running of the engine backward, the curved track at the bottom of a steep down grade where the track commenced a sharp up grade, all taken together, it is alleged, caused the derailment. Can it be said as a matter of law that by his service for four or five years as-fireman deceased knew the danger to him of these combined acts of negligence, or that a reasonably prudent man in his situation would have known it ? It is noticeable that both sides at the trial placed upon the-stand expert witnesses as to the danger attendant upon operating an engine backward at the rate of speed and under the conditions shown by-the testimony in this case. We think the question as to whether the deceased knew, or as a reasonably prudent man ought to have known, the danger of breaking the flange of the wheel and derailment by reason of the existence of the alleged acts of negligence, should have been submitted to the jury, especially in view of the testimony that the speed of the-train at the time of the accident was greater than usual. This testimony cannot be brushed aside as of no weight, as its weight or the credibility of the witnesses is not for the court, but for the jury, to determine. The-witnesses who testified that the speed of the train was from 35 to 40' miles an hour, and the witnesses who testified that the speed was faster than usual, corroborate each other, as the engineer called by the defendant testified that the usual speed was 30 to 35 miles an hour. We think that the evidence left the extent of the knowledge of deceased of the
The trial court assumed that there was no evidence as to the bad condition of the track, except the use of slag for ballasting, and, as slag was used by other railroad companies for ballasting, there was no want of ordinary care in the use of it in the present case. The assumption as to what the evidence showed, as well as the legal conclusion drawn therefrom, was erroneous. What a well-conducted railroad company may use for ballast may be evidence relevant to the issue of negligence, but the plaintiff had the right to have her case tried by a court of justice, and not by some other railroad company. The trial court, again, said that, notwithstanding the testimony of some of plaintiff's witnesses that in thei'r opinion it was unsafe to run an engine backward faster than 15 or 18 miles an hour, it was customary among very many railroads to run engines with the tenders in front at much higher rates, and that whatever is customary on- well-conducted roads is not negligence. This was an erroneous view of the case, as it took a disputed question of fact from the consideration of the jury, and announced a mistaken view of the law of negligence. The final arbiters of what shall constitute negligence under a particular state of facts are the courts of justice, and they cannot abdicate this function in favor of any one. In this class of cases the law fixes the standard; the question always being: “What would a reasonably careful and prudent man, in the exercise of ordinary care, have done under like circumstances?” Evidence of what other well-conducted railroads do in the operation of engines backward may, in a proper case, be relevant; but other railroads cannot, by their custom, deprive the plaintiff in error from having the question as to whether the operation of the engine backward under the conditions which she claims existed in this case, and in face of the fact that she introduced evidence that to so operate them faster than 15 to 18 miles an hour is dangerous, and that to so operate them is not as safe as to operate them in the regular way, submitted to a jury for determination. The trial court was also of the opinion that there was not sufficient evidence to warrant the jury in finding that the derailment was caused by any other cause than the breaking of the flange of the wheel on the tender, and, as there is no complaint made as to any negligence in regard to the wheel, there could be no recovery. The proximate cause of the derailment in this case was for the jury, and the testimony left that question in doubt, but the plaintiff in error had the right to claim, as a reasonable inference from the evidence, that the acts of alleged negligence on the part of defendant in error broke the flange of the wheel of the tender. It would not be an improbable thing, and certainly not impossible. •
The judgment of the trial court must be reversed, and a new trial ordered.
