210 F. 761 | 4th Cir. | 1913
Plaintiff is a citizen of South Carolina. Defendant is a Virginia corporation. The writ was issued March 8, 1910. In the original complaint plaintiff alleged: That on December 4, 1908, he was injured while in the employment of defendant railroad company, at Florence, S. C. That, while acting as yard conductor, under the order of Mr. Thorne, the yardmaster, his superior in authority, he was endeavoring to make a coupling of two freight cars; the coupler of one being “out of order.” That, while so engaged, it became necessary, by reason of the defective condition of the coupler, to use his foot. That, in making the coupling, his foot was caught between the couplers and injured. He sues for damages, for the injury thus sustained. • Defendant, in addition to a general denial of the material allegations in the complaint, relied upon the affirmative defenses of contributory negligence and assumption of risk. Pending the trial, the court permitted plaintiff to amend his complaint by alleging “that the train, upon which plaintiff was employed when the injury occurred, was engaged in interstate commerce.” In the amended complaint, filed June IS, 1912, plaintiff, repeating the facts set out in his original complaint, alleged: That, at the time he sustained the injury, defendant “was the owner and operator of one or more lines of railroad, passing through the city of Florence, in the county of Florence and district aforesaid, and is employed in interstate commerce.” ’ That the train, upon which he was injured, by reason of the' defective condition of the coupler, “was
At the conqlusion of the evidence, defendant requested the court to instruct the jury to render a verdict for the defendant for that plaintiff’s alleged cause of action, as set out in his amended complaint, was barred by the statute of limitations. The motion was refused, and defendant excepted and, upon its application for a writ of error, assigned such refusal as error. Upon the trial the plaintiff, in his own behalf, testified that on December 8, 1908, he was in the employment of defendant as yard conductor; had been in such employment about 2 or 2% years; that he was ordered by the yardmaster, his superior, whose orders he was required to obey, to go down to the long yard and-take the “Wilmington Extra” — a freight train, up to the long new yard — that this train runs from Florence, S. C., to Wilmington, N. C.- — he coupled it up and sent the switchman to the rear and to hold off the brakes, went down to the front end himself, and coupled up, started out; after he got started and had gone some 15 or 20 car lengths, the check clerk came to him .and said there was a car that did not belong on there. It was the duty of the check clerk to check up cars, giving numbers and initials, carrying them to the yard officer, the conductor, to see that no cars were there which did not belong there, and notify the man who was working the cars. Fie asked witness to throw the car out, said it went to Rocky Mount, that he threw it out, and came back to make the coupling. • The rear and front ends of the train were uncoupled, about the middle. He described, by the use of a diagram, not in the record, where he was standing to make the coupling, the position and movement of the cars to be coupled, saying:
“Just as tlie cars came together, I saw one of the side plates under the drawhead was loose and dropped down a little, and that caused the bumper to turn a little to one side. It would not couple just like .it was, and I did not have time to stop the engine to push it, and Mr. Thorne (the yardmaster?) ordered me to hurry out, that the conductor was checking up, and to get it out as quick as I could, and I pushed my foot against it to keep it from injuring the car any more.”
He is asked, “What usually happens when they come back together without coupling?”
He answered, “Well, sometimes they would not couple, and then again they break, make a worse coupling” — that one was tilted to one side and would not couple in that shape. “I put my foot and shoved it into its place, so it would couple. My foot got caught between them. It crushed it all to pieces.”
“The plaintiff is entitled to the benefit of the act of 1908 under this complaint, and, as such, he is entitled .to the benefit of the act of 1893, which is very strictly enforced; they are acts passed for the purpose of lessening the chances of injuries to employes, and they are, and very properly, very strictly enforced against the employers. I think that, when the employes understand that they have the benefit of this act, they are not themselves to recklessly ignore them and expose themselves to danger, which those acts were intended to free them from, etc.”
Defendant sued out a cross-writ of error for the refusal of the court to instruct the jury that plaintiffs alleged cause of action was barred by the statute of limitations. The two writs were argued together.
“The statute does not deal with the cause of action, so far as negligence is concerned, at all. but with the defenses that may be allowed and the measure of the recovery.”
The exception to the refusal to grant defendant’s motion for an instruction that plaintiff’s cause of action was barred by the statute of limitations cannot be sustained.
“That no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employes contributed to the injury or death of such employe.”
A similar provision is found in section 4, relating to the defense of assumption of risk. It being shown that the coupler was defective, that is, did not conform to the statutory standard of efficiency and that, in endeavoring to make a coupling, the employé is injured, the sole question, left open, is whether such defective condition contributed to the injury; that is, whether the negligent conduct of the em-ployé was the sole cause of the injury, or the violation of duty by the carrier was “in whole or in part” or a .contributive cause thereof. It follows that, before the court may, in such cases, give a peremptory instruction for the defendant, or take the case from the jury, the evidence, taken in the light most favorable to the plaintiff, must exclude the conclusion that the violation of the. Safety Appliance Act contributed to the injury. If the defective condition of the
“If under tlie Employers’ Liability Act, plaintiff’s negligence, contributing witb defendant’s negligence to tbe production of tbe injury, does not defeat tbe cause of action, but only lessens tbe damages, and if tbe cause of action is established by showing that the injury resulted in ‘whole or in part’ from defendant’s negligence, the statute would be nullified by calling plaintiff’s act the proximate cause, and then defeating him, when he could not be defeated by calling his act contributory negligence. For his act was the same act, by whatever name it be called. It is only when plaintiff’s act is the sole cause— when defendant’s act is no part of the causation' — the defendant is free from liability under this act.”
In the opinion on the original hearing, Judge Sanborn says:
“Plaintiff did not assume tbe risk caused by the defective coupler. Merely going between tbe cars, therefore, was not negligence, if he used ordinary care in doing so. * * * It was negligence per se, for defendant to use the car having the defective coupler, even though the shoving of the ears together was accidental. * * * On the other hand, it was not negligent for plaintiff to attempt to use. the defective coupler, because the statute expressly provides that he should not assume the risk by continuing to work after he knew the appliance was defective.”
The facts in this record are, in several essential respects, so far as the legal duties and habilites are concerned, similar to those in Chicago, etc., Ry. Co. v. Brown, 185 Fed. 80, 107 C. C. A. 300, affirmed 229 U. S. 317, 33 Sup. Ct. 840, 57 L. Ed. 1204. There, it was the duty of the employé to uncouple cars; by reason of a defect in some part of the coupler, plaintiff was unable to do so in the usual way. He reached for the coupling pin on an adjacent coupler, his foot slipped, and it was shoved into an unlocked guard rail and injured.The District Judge instructed the jury that, in the conditions described, plaintiff was not chargeable with contributory negligence, that is, failure to exercise ordinary care for his own safety, by the mere fact of going in between the cars to effect the uncoupling; he' is required, before he can recover, to exercise ordinary care after he goes between the cars and while he is there endeavoring to effect an uncoupling, that is, the separation of the cars. In Gilbert v. B., C. R. & N. R. Railroad, 128 Fed. 529, 63 C. C. A. 27, after defining the statutory duty imposed upon railroad companies to provide their cars with automatic couplers, the judge, writing the opinion, says: ,
“Tbe devolution of tbis duty upon tbe carriers necessarily imposed upon tbeir servants tbe correlative duty of using the equipment thus furnished to them, and of refraining from going between the ends of tbe cars to couple or uncouple them unless compelled to do so by necessity.”
“Upon the last sentence of this excerpt, the plaintiff in error particularly relies. In our judgment, ‘the necessity’ existed in the case under consideration; for in large yards, where safety appliances refuse to work, to let the cars go uncoupled, under the circumstances disclosed here, might result in blocking the operation of the whole road. * * * If there be contributory negligence at all, it depends, not upon his assuming the risk under the circumstances disclosed, but upon the degree of care with which he acts while in the performdnce'of the work under the assumed risk.”
It would seem that it was the purpose of Congress, as indicated in the language used in this statute, to provide that, if the carrier fails to provide its cars with couplers which conform to the prescribed standard, it is guilty of negligence per se; that if one of its employés, in the discharge of his duty, is injured, in attempting to make a ■coupling with such defective coupler, when the necessity for doing so exists, he may recover unless it appears that he was negligent in the manner of doing so, and that such negligence was the sole cause of the injury; or, to state the proposition from another viewpoint, in such case the carrier is liable if the defective coupler contributed to the injury. That is the sole question to be decided in such cases.
We are of the opinion that, upon the whole evidence, these questions were for the jury. While there is very much in the evidence to sustain the conclusion reached by the judge, we think that it was not so clear as to be resolved into a question of law. It was a question for the jury. There was much testimony which, if true, contradicted plaintiff, in respect to the condition of the coupler-and otherwise. The learned judge did not pass upon the weight of the evidence. Upon the record, as presented to this court, we are of
The judgment is reversed, and a new trial directed,
Reversed.