276 F. 73 | 8th Cir. | 1921
Jeffries, hereafter called plaintiff, sued the railway company, hereafter called defendant, under the federal Employers’ Riability Act (35 Sta.t. 65 [Comp. St. §§ 8657-8665]), to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. There was a verdict and judgment for the plaintiff. Defendant sued out a writ of error. The alleged negligence of defendant is stated in plaintiff’s complaint as follows :
“Plaintiff further states that on or about the 24th day of October, 1917, he was in the employ of the defendant as a brakeman, and that while he was so employed on the said day it was necessary for the plaintiff to throw a certain switch to permit the train on and about which the plaintiff was working to move off of a siding at Menfro, Mo., onto the main line; that in pursuance to said duty he threw the switch and permitted the train to move out on the main line; that it then became and was the duty of the conductor on the said train to reline the switch after the train had passed upon the main line and that he in pursuance to said duty relined the switch; that it then became and was the duty of the engineer on the said train either to stop the train or to let the train drift along without giving it any more steam at all until the engineer received a signal from the plaintiff that the plaintiff was ready to have the engine given steam, ready to have the train to proceed, and it was then the duty of the engineer after receiving such signal from the plaintiff not to give the engine steam or in any manner start the train forward at a faster rate of speed until after the engineer had given the usual and customary signal of two short blasts signifying that he was about to give the engine steam and proceed on the journey, and plaintiff further states that while he was stationed on top of one of the cars in the train the conductor threw the switch and got upon the train and that the plaintiff gave a signal to the engineer to proceed, and further states that he received no response from the engineer to indicate that the engineer was about to proceed, and plaintiff further states that thereafter and while he was waiting for such signal from the engineer to indicate that the engineer was about to proceed, he, the plaintiff, was moving over the top of the train toward the engine, and that as the plaintiff was at the end of one of the cars moving over to the car nearer to the engine, that train was suddenly caused to move forward at a greatly increased rate of speed, causing a sudden, violent, and unusual jerk and taking out of the slack of the train, causing the plaintiff to be thrown from the said car to the ground and to be run over and injured as hereinafter stated.
“Plaintiff further states that his said injuries were caused by the carelessness and negligence of those in charge of the movements of the said train in suddenly permitting, allowing, and causing the train to start forward at an increased rate, of speed without first having given the usual and customary signal that the train was about to proceed, and by reason of their negligence in causing such violent, unusual, and sudden jerk of the train.”
Defendant by its answer denied generally the allegations of tire complaint and pleaded contributory negligence and assumption of risk. The first alleged error assigned is that the trial court erred in refusing to direct a verdict for the defendant because the alleged cus
“Tlio situation therefore presented is that two or three witnesses for the Ijlaintiffi testified that there was such a custom, while six or seven witnesses for the defendant testified, that there was not; and there is absolutely no evidence in the record to disprove the positive testimony of some of defendant’s witnesses who stated that they did not observe any such custom in increasing the speed of their trains. The result therefore is as stated in the Lindeman case that there ‘was uncontradicted evidence that the custom to which the witnesses for the plaintiff testified was not uniform, and hence that it was not binding.’ If it should be contended that where there is contradictory testimony as to the existence of a custom, it is the province of the jury to determine if the custom in fact exists, yet whore there is uncontradicted testimony as existed here that the alleged custom was not uniform, it is the duly of the court to so declare.”
In Fletcher v. Baltimore & Potomac R. R. Co., 168 U. S. 135, 18 Sup. Ct. 35, 42 L. Ed. 411, the uncontradicted evidence showed the following facts:
“The defendant had been in the daily habit for several years of running out of Washington and Alexandria a repair train of open flat cars loaded with its employees, and the train returned every evening about 6 o'clock and brought the workmen back to their homes. These men were allowed the privilege of bringing back with them, for their own individual use for firewood, sticks of refuse timber left over from their work after repairing the road, such as old pieces of bridge timber, cross-ties, etc. It was the constant habit of the men during all these years to throw off these pieces of firewood while the train was in motion at such points on the road as were nearest their homes, where the wood was picked up and carried off by some of the members of their families or other person waiting there for it. The only caution given the men on the part of the servants or agents of the company was that they should be careful not to hurt any one in throwing the wood off. The foreman of the gang was the man who usually gave such instruction.”
The trial court directed a verdict on this evidence for the railroad. The Supreme Court reversed this action of the court and in doing so said:
“We feel quite clear that, from the evidence in this case, it was for the jury to say whether the custom was sufficiently proved.”
*77 “Before plaintiff can recover in any event you must believe from the evidence that the engineer of the defendant on said train was guilty of negligence as herein defined which caused or contributed to cause his injury.”
The trial court charged the jury if they believed from the evidence that the injury to plaintiff arose through his own fault, and through no fault or negligence of the engineer as the court had already explained to them, then their verdict should be in accordance with the rule touching contributory negligence which the court should thereafter give them. It is claimed that the court should have stated to the jury that if the engineer was not negligent their verdict should be for the defendant regardless of the contributory negligence of the plaintiff. The court, however, in many other places stated just what counsel for defendant contends for. To illustrate, in many places in the charge is found language like the following:
“If, upon consideration of all of the evidence, you believe that the defendant’s engineer was not guilty of any negligence, as hereinafter defined, or if upon this issue the evidence is evenly balanced, and if you are unable to determine in whose favor the same preponderates, then your verdict ought to be for the defendant.”
“From what I have said to you, gentlemen, you will readily appreciate that there are but two issues in this case. One of those issues is whether the custom contended for by the plaintiff existed. The other is whether the failure to observe that custom, after you have found it existed, concurred with or acted with a sudden, violent, and unusual jorfe of the train, so that thereby plaintiff was thrown off, run over and hurt. That is ail there is left in this case. Tlie other questions in it, according to my view, and I say to you the subjects on those points have been disposed of by admissions or proof which is not contradicted in this case — I say this to you because I want you to devote your considerations to these points. I shall have more to say about 'that custom and about that jerk hereafter in my charge.”
Standing alone this portion of the charge might be subject to criticism; but, when the whole charge is examined, all of the defenses that the defendant had were repeatedly stated to the jury and the rules of law governing the same. It was admitted that the train carried interstate commerce, and that plaintiff was an employee of the defendant. The engineer admitted that he did not give the two short blasts of the whistle and also testified that he was under no duty to do so. The conductor also testified that he did not hear or remember of hearing the two short blasts of the whistle after he saw the plaintiff give the proceed signal. The trial court did, in another part of its charge, state to the jury that by virtue of plaintiff’s employment in a business universally believed, and known to be hazardous, he assumed all the risks, dangers, and hazards properly and necessarily incident thereto, and then stated that if plaintiff’s injury was caused by any
“I think it is clear to the jury that plaintiff cannot recover in this case if there was no negligence on the part of defendant. If the hurt accrued to him solely by his own negligence of coarse he cannot recover. I think I made that clear. I labored to make it clear.”
We do not deem it necessary to cite authorities in support of the proposition that counsel may not select particular portions from the charge for the purpose of assigning error, but the whole charge must be taken together, and if it appears that the case is fully and fairly stated, the mere fact that certain passages standing alone would be subject to criticism is not important. The jury in this case were told that they must take the charge as a whole, and we have no doubt that the charge as a whole fully, correctly, and fairly presented the case to the jury. As there does not appear to be any prejudicial error in the record, the judgment below is affirmed.
The Judges who heard this case all concurred in the decision thereof and the reasons therefor, but Judge HOOK deceased before the opinion was prepared.