217 F. 518 | 9th Cir. | 1914
(after stating the facts as above). Three questions are urged upon our attention: First, whether the
There can be no doubt that when the primary act was passed, electrically propelled trains were not within the legislative mind, and where “locomotive engine” occurs reference was had to a steam-propelled engine. And likewise when “engineer” is spoken of, it had relation to a person in charge of a steam-propelled locomotive. But this does not signify that other locomotive or motor engines, and that persons driving other motor cars, may not come within the scope and intendment of the act. The purpose of the Legislature was to provide, among other things, for a more efficient and effective way of handling trains in interstate commerce, so that the speed and movement of the train might be regulated and controlled, and, when desired and in cases of emergency, readily brought to a stop, all from the engine and by the one person in charge of it, thereby to lessen the danger to employes and the public incident to the operation of railroads.
The electric railroad has since come into very general use, with its driving engines called motors, and its employes in charge of the engines are called motormen or enginemen. These railroads, notwithstanding, are common carriers of property and persons, the same as steam railroads, and have employes and come into relation with the public in the same way, the only essential difference being that electricity has taken the place of steam as a propelling agency or force, with differently' contrived engines, suited to the harnessing of the propelling agency to the use desired, so that the broad purpose of the Legislature applies as completely to the one kind of railroad as to the other. In a narrower sense, a locomotive engine is spoken of as an engine propelled by steam; but when the statute, as the amendment does, extends the provisions of the act to apply to all trains, locomotives, tenders, cars, and similar vehicles used on any railroad engaged in interstate commerce, and to all other locomotives, tenders, cars, and similar vehicles, it broadens the significance so as, without question, to include motors electrically propelled, used upon railroads engaged in interstate commerce. So, also, the original act, with its amend
- The next question may be more clearly resolved by understanding what were the issues presented to the jury for their verdict. The complaint, so far as it -is pertinent to the inquiry, alleges:
“(4) That plaintiff on said date aforesaid was directed by the agents, officers, and employes of said defendant to take his said train No. 5, and to proceed fíom said town of Cceur d’Alene to the city of Spokane, and that plaintiff was given orders, directing him to meet and pass regular train No. 20 at the town of Alan; that when rounding a curve and nearing the station of Gibbs, state of Idaho, which is a point between Cceur d’Alene City, Idaho, and the town of Alan, this plaintiff saw a train coming from the opposite direction and running on the same track upon which said plaintiff’s train was running, which said train plaintiff is now informed and believes was Regular Train No. 20.
“(5) That upon the coming into view of said train No. 20, plaintiff used all due diligence to bring his motor upon said train No. 5 to a stop and standstill ; that he duly applied the air brakes upon said motor, but, owing to the defective condition of said air brakes, which said condition was wholly unknown to plaintiff, said brakes wholly failed and refused to act, and plaintiff’s said train continued to rush forward at a tremendous rate of speed and a collision occurred, plaintiff’s said train colliding with said train No. 20, and which said collision caused the injuries hereinafter complained of.
“(6) That said accident and collision was directly due to the wrongful and negligent acts of the plaintiff’s said superiors in the giving of said wrongful orders, and in their failure to furnish this plaintiff with a motor and train supplied with proper air brakes in working condition.
“(7) That this plaintiff, after observing said train No. 20 upon the track, had plenty of time to have stopped his said train and prevented said collision if said air brakes had béen in good condition and in proper working order.”
These allegations were denied, and the defendant for further answer alleges;
“That on said July 31st plaintiff was acting as motorman upon a special train referred to and described in the orders of defendant as motor 5. That under the rules and regulations of such company such special train had no rights over the regular trains operating under the time-table of defendant, and was obliged to keep out of the way of such regular trains; that such special train had no right to go out upon the road when a regular train was due, unless it had telegraphic orders from defendant’s train dispatcher in Spokane ordering it to do so; that upon said date plaintiff, in charge as motorman of the special train aforesaid, was standing in defendant’s yards at Cceur d’Alene ready to start upon a run to Spokane as soon as there should arrive at Coeur d’Alene one of defendant’s regular trains, known on its time-table as No. 20, which was then due; that defendant, knowing that No. 20 was then due, and that he had no right to leave, Coeur d’Alene until it had come in, received telegraphic orders from the dispatcher at Spokane to meet another special train at the town of Alan, and that when handing him such orders the conductor of plaintiff’s train told him he might run farther down in the yards and wait there until No. 20 came in; that plaintiff started his train under such orders, but instead of stopping at the point in the yards where he had been directed to stop, continued on his way towards Spokane, passing out of the Coeur d’Alene yards and out on the line to Spokane, and at the station of Gibbs, a distance of about 1% miles from Coeur d’Alene, his train came in collision with No. 20 on a straight track; that No. 20 was in full view of plaintiff’s train for a distance of more than 800 feet before the col*523 lision occurred, and the motorman of No. 20, seeing plaintiff’s train approaching, came to a full stop; that plaintiff could, if he had seen No. 20, have brought his train to a stop within a distance of 150 to 200 feet, and that the collision between the two trains was caused solely and entirely by plaintiff’s disobedience of the rules, regulations, and orders of the company, and by his reckless conduct in failing to pay heed to his surroundings, and to keep a lookout upon the track ahead of him so as to observe No. 20 and bring his train to a stop, as he might have done had he have looked ahead of him at all.”
The issues thus presented were whether the plaintiff was directed by defendant to proceed with train No. 5, which was special, out of Cceur d’Alene, and to meet regular train No. 20 at the town of Alan; whether the defendant failed to furnish the plaintiff with a motor and train supplied with proper air brakes in working condition; whether plaintiff used due diligence to bring his motor upon train No. 5 to a stop by application of the air brakes upon the motor; and whether, by reason of the defective condition of said air brakes, plaintiff was unable to stop his train in time to prevent collision. And, as presented by the answer, whether, under the rules and regulations of the defendant company in the operation of its train, the plaintiff operating a special was required to keep out of the way of regular trains; whether plaintiff received orders from defendant to meet another special train at Alan, and was directed by the conductor to run farther out in the yards, and there to wait until train No. 20 arrived in; and whether, in disobedience to these orders, he continued on his way, thus bringing on the collision.
*524 ■ “In determining the force of a special verdict or finding, only the facts found, unmodified by the statements of counsel or by reference to the evidence, can be considered.”
The rule covering almost the exact controversy here is very well stated in Conwell v. Tri-City Ry. Co., 135 Iowa, 190, 191 (112 N. W. 546, 547), a code state, as follows:
“On a motion for judgment as against a general verdict based on special findings, every issue raised by the pleadings and not eliminated by the instructions will be presumed to have been found for the party in whose favor the general verdict is returned, and it will be presumed that such findings are supported by sufficient evidence; but the special findings cannot be added to or supported by the evidence, and must- be given effect only so far as they necessarily negative the findings which might otherwise be assumed in support of the general verdict.”
See, also, Farmers’ Sav. Bank v. Forbes, 151 Iowa, 627, 132 N. W. 59; Drake v. Justice Gold Min. Co., 32 Colo. 259, 75 Pac. 912.
“If, under tbe Employers’ Liability Act, plaintiff’s negligence, contributing with, defendant’s negligence to the production of the injury, does not defeat the cause of action, but only lessens the damages, and if the 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. Por 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 — that defendant is free from liability under the act.”
To the same effect is Louisville & N. R. Co. v. Wene, 202 Fed. 887, 121 C. C. A. 245.
Now, turning to the special findings, the jury first found that the plaintiff received the train order No. 53. Then they found that the air brakes on plaintiff’s train immediately before the collision were in
“A collision does not of necessity result from disobedience of orders on the part of an employe, and if the employe who has been guilty of such disobedience is unable to avoid an impending collision because of defective equipment furnished by the master, it surely cannot be said that the defective equipment in no wise contributed to the accident. If it did contribute, a liability exists under the act in question” (the Employers’ Liability Act).
The third special finding that the plaintiff’s leaving Coeur d’Alene in violation of his orders was the proximate cause of the accident was a mere conclusion of law, and not a finding of fact. The purpose of a special finding is to find the fact, so that the court may deduce the legal conclusions and thus determine the controversy.
Further than this, the jury did not specially find as to all the material issues pertinent to the inquiry under the pleadings.
We think there can be no question that the general verdict should prevail.
The judgment will be affirmed
