47 F. 204 | U.S. Circuit Court for the District of South Carolina | 1891
(after stating the facts as above.) There are two issues in this case. Was there negligence on the part of the defendant causing the death of the intestate? Did the intestate contribute to this casualty? If the evidence on these issues be conflicting, they must be submitted to the jury. But if the evidence on either of these issues “is undisputed, or is of such a conclusivo character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict returned in opposition to it,” the court can direct the verdict on the issue. Railroad Co. v. Converse, 139 U. S. 472, 11 Sup. Ct. Rep. 569. The undisputed testimony on the second issue is that the intestate signed tho paper in evidence, dated 24th January, 1890; that on 12th February, 1890, notwithstanding the contents of that paper, he went between sections of a train to which a locomotive was attached, and attempted to couple cars without a stick, the conductor not being near him, or seeing or ordering it. This was the proximate cause of his death. It is contended with great earnestness and evidence of research that this paper is void as against public policy; that a railroad company cannot in advance contract with its employe for exempt, on from the consequences of its own negligence. It is not necessary to ’decide this point. The paper in question does not contract for any s ueh exemption on the part of the defendant. It is a declaration on the part of the intestate that the company will not be liable to him for the consequences of certain acts on his part, which the railroad company forbid him to perform. There can be no objection to this.
It is also maintained that this regulation is habitually disregarded, within the knowledge of conductors of trains, and must be held to be obsolete. There is no evidence that plaintiff’s intestate ever disregarded this regulation before this time. It can scarcely be seriously maintained that a regulation recognized by him on 24th January, 1890, could, be held obsolete by him on 12th February following. Ñor am I prepared to say that the disregard of their duty by conductors could render obsolete a regulation of the company, nor that a conductor so far represents the company as to be authorized to rescind rules made by the corporation for his guidance, and for that, of the train hands. The facts on this issue of contributory negligence being undisputed anu being conclusive, the jury will find a verdict for defendant.
