65 F. 196 | 7th Cir. | 1895
It is contended that the court erred in submitting to the jury the question whether the plaintiff i# error was chargeable with negligence in using the defective coupling pin, the breaking of which permitted the cars to separate, and thus caused the defendant in error, in attempting to pass from one car to another, to fall between them, and sustain the injuries of which he complains. The plaintiff in error did not ask the court to give to the jury a binding instruction -to return a verdict in its favor, for the reason that there was not sufficient evidence to authorize them to find and return a verdict for the defendant in error. The case was submitted to the jury on the evidence produced, without any objection specifically asking the court to rule as matter of law that there was such failure of proof as would preclude a verdict for the plaintiff below. The question of the negligence of the plaintiff in error in
We have carefully read the evidence in the record, and are satisfied that it was sufficient to carry the question of negligence to the jury. The defendant in error was a brakeman on an east-bound through freight train of the plaintiff in error, which had been made up in its yards at East St. Lotus, in the state of Illinois. Rear Pine Bluff City, in that state, the train parted. The forward part of the train, consisting of the engine and tender and 13 freight cars, became separated from its rear part, consisting of a caboose and 7 freight cars. The crew with the forward part of the train consisted of the engineer, fireman, and one brakeman, the defendant in error. He was on the top of the cars, while the engineer was hacking the forward part of the train down a steep grade, to couple onto the detached portion. The defective coupling pin in question was in use as a part of a foreign car which had been delivered to the plaintiff in error for transportation over its line, and had been put into the train at East St. Louis. This coupling pin was broken while the forward part of the train was moving hack, and the thirteenth car, on which the defendant in’error was riding, became separated from the twelfth car, and in attempting to pass from one to the other he fell between them, and was seriously injured. The night was dark, and it had been snowing somewhat. Ilis purpose in attempting to pass from the thirteenth ca,r to the twelfth was to enable him to reach and set the brake on the eleyenth car, with a view to control the movement of the forward section of the train. The evidence shows that the coupling pin had a break in it extending from one-fourth to one-third of the way through it; that the break was rusty, and looked as though the pin had been cut into with a knife, and had then been exposed to the weather. The only witness who spoke on the subject said he could not say whether or not the fracture could have been seen before the pin was broken.
It is insisted that the jury was not warranted, on this state of the proof, in finding negligence in the use of a defective pin. It is claimed that the plaintiff in error had a car inspector at East St. Louis, and that, while there is no evidence to prove that he actually inspected the car having the defective coupling pin, the presumption, in the absence of proof, is that he performed Ms duty, and inspected the car, and discovered no defect. And it is further claimed that, if the inspector neglected to inspect the car, or if he made an insufficient inspection, the defendant in error can have no recovery for such negligence, because the car inspector is to be deemed the fellow servant of the injured brakeman. We have held in the recent case
It is further contended that a rule of the plaintiff in error made it the duty of the defendant in error to have been on the ground, walking, at the rear of the forward section of the train, acting- as a flagman ; and that, if he had been on the ground, he would not have been injured. This part of the train was backing down a heavy grade, so that, in the judgment of the brakeman, it became necessary to set some of the brakes, to control the movement of the cars. It was his intention, when he had set enough brakes to accomplish this purpose, to get down, and act as a flagman. The engineer moved the cars so rapidly that the brakeman did not deem it safe to attempt to get down. It is said that the negligence of the engineer in running too rapidly upon a down grade contributed to the accident, and that, as the engineer and brakeman were fellow servants, there can be no recovery. If it were conceded that the accident and consequent injury arose from the concurring negligence of the car inspector and engineer, it would not relieve the plaintiff in error from responsibility. It would still be liable for the consequences of the negligence of its car inspector, even though the negligence of the engineer may have contributed to produce the injury. It is held in Cayzer v. Taylor, 10 Gray, 274, that the master is liable to his servant for injuries resulting from his defective machinery, although the negligence of a fellow servant contributed to the accident. The same doctrine is affirmed in Boyce v. Fitzpatrick, 80 Ind. 526. Indeed, upon principle, it must be held that a master cannot escape
“Should any portion be uncoupled while running-, the brakeman must stop the rear section as quick as possible, the engineman being- carei'ul to keep the forward section out of the way. The engineman and fireman must look back frequently to see that all is right; and, in case the train is broken apart, great, care must be taken to keep the forward part out of the way of the detached jiart. and every precaution used to prevent a collision. The engine-man must in all cases go back, under the protection of the flagman, after the detached portion. He must be absolutely sure it has stopped. Trains going-up behind will wait indefinitely unless otherwise ordered by the train dispatcher.”
It is insisted that this rule made it; the duty of the defendant; in error to he upon the ground, acting- as a flagmau, to insure the slow and careful hacking of the forward section of the train, and that, his disregard of this duty in going on top of the cars to set the brakes was the proximate cause of his injury. To this it is answered that the object of the rule was to keep the forward section of the train from colliding with the detached portion, and that to accomplish this purpose it; was necessary to set the brakes. This rule did not, in terms, require the brakeman to act as a flagman, and he upon the ground. It must receive a reasonable construction in view of Hie exigencies of the situation. We do not think the court would have been justified in directing the jury to find for the plaintiff in error, even if they believed the defendant in error was on the top of the cars, setting the brakes, in violation of the rule. The rule does not require us to hold that the company was absolved from its duty of exercising reasonable care for the safety of the injured brakeman because he was engaged in selling brakes on the moving cars. He was still in his master’s service, performing a duty important to the safety of the train.
But if we felt constrained to hold that the defendant in error was setting the brakes in violation of the rule, still we could not disturb the verdict. The proximate cause of the injury was Hie breaking of the defective coupling pin, and the consequent parting of the cars. The negligence of the injured brakeman, in being in an improper place, if it can be called negligence, was a mere condition of the injury. The breaking of the defective pin was the proximate cause of the injury. His being on the cars was not the immediate cause; of it in a juridical sense. It may have been the remote cause, sometimes called “remote negligence,” but it is too remote and contingent to be influential on the right of the defendant in error to recover. In the case of Phillips v. Railway Co., 64 Wis. 475, 25 N. W. 544, this exact question was considered, and it was there said, if the brakeman had been at his post on top of the ears, as required by a rule of the company, he might not have been injured; yet it was held that his
We have carefully examined the entire charge of the court, and especially those parts of it to which exceptions were reserved, and, in our opinion, it contains a full and fair statement of the law applicable to the facts of the case. It is in harmony with the views herein ex- . pressed, and no good purpose would be subserved by setting out the instructions in this opinion. Finding no available error in the record, the judgment of the court below will be affirmed, at the cost of the plaintiff in error.