61 F. 259 | 5th Cir. | 1894
Lead Opinion
It appears from the bill of exceptions in tbis case that the following facts were established by the testimony introduced, to wit:
First. The plaintiff, E. M. Patton, was in the employ of the defendant as fireman on a passenger engine at the time; and for some time before the accident his regular work was as a fireman of engine No. 90, which hauls a passenger train from the city of El Paso to Toyah, Tex., a distance of 196 miles, leaving El Paso at about 2:30
Second. That it was the duty of the firemen of passenger engines in the employ of defendant to keep the cab of the engine clean, and to clean all that portion of the engine above the running board, to keep the oil cans and lubricators filled with oil, and to generally obey orders of the engineer when the train was running.
Third. That the defendant had at El Paso a roundhouse and repairing shops, and a machinist to inspect and repair the engines, and also had at Toyah a roundhouse, and a machinist to inspect and repair its engines, and that engines coming into each place were inspected and repaired before going out again.
Fourth. When defendant’s passenger engines arrived at El Paso, including the engine on which plaintiff worked, the engineer and fireman would get off, and leave the engine attached to the train at the depot, and the engine would then be taken charge of by the yardmen, and an employe called the “hostler” would detach the engine from the train, and take the same down into the yard to coal it, sand it, and do such other things as were necessary, except repair it, and then place the same in the roundhouse, where it would be cleaned by the servants other than the fireman in all its parts beneath the running board, and inspected by the machinist and repaired. The fireman would have ample time after the engine had been placed in the roundhouse to clean out the cab, wipe off his part of the engine and fill his oil cans and lubricators. Then the engine would be taken from the roundhouse, and attached to the train, by the yardman or hostler, where the fireman and engineer would get on the train again to begin their trip. Plaintiff knew all this.
Fifth. There was no rule of the company that prohibited the fireman from getting on the engine for the purpose of filling his oil cans, etc., before it was placed in the roundhouse, nor was there any rule that specified a particular time when he should do this work, the only rule being that he was to have his engine in proper condition to go out when its turn came. There was a rule of the company that the engineer and fireman of a passenger train should not be called for duty within, after they had come in on a trip. That the fireman could select any time that was most convenient for him to clean the cab, fill the oil cans, etc., and that while the engine was hot, and the oil warm,- it was more convenient, and could be done in less time than after the engine was cooled off.
Sixth. That passenger engine ÍTo. 90 has two steps on the right side. One of these steps is a loop fastened under the tender, and a person getting off the engine backwards would have this step on the left. The other step, which would be on his right, was attached to the rear part of the engine. This latter step, the proof shows,
Seven(h. On the 29th of November it was necessary to put a spring on the right side of the engine, and in order to do so this step had to he removed, in order to place a jackscrew under the x*ear of The engine; and in doing this the rod holding the .step .was taken out of the casting by unscrewing tbe nut described in paragraph 6, and the step was replaced on that morning at El Paso, before the engine started on its run to Toyah. In replacing the step the plaintiff assisted the machinist of defendant at El Paso (Rossiter) in tightening up the nut; and the same day the engine left El Paso, taking out a passenger train at the usual hour, 2:30 p. m., and made the run to Toyah. The machinist and plaintiff testified that the nut was properly screwed on at El Paso, and would not have become loose in a trip from El Paso to Toyah and return.
Eighth. That at Toyah some repairs were made to the engine. Alex Mitchell, who was foreman of the shops and yards at Toyah, undertook to make these repairs himself. He had a couple of Chinamen assistants, who placed two jaekscrews, one on each side of the front of the engine, and elevated the front. The Chinamen brought another jackscrew and put it down at the rear of the engine, near to tins step above described, on the right side of engine. That to put the latter jaekscrews in place, to elevate the rear of the engine, it was necessary to remove this step. Plaintiff testified he saw a jackscrew on tbe ground near this step. Alex Mitchell, the foreman for defendant, testified: That he told the Chinamen to get the jaekscrews, and under his direction they placed two jaekscrews, one on each side of the front of the engine, hut, without any Instructions from Mm, they brought and put another jackscrew on the ground, near the step. That he was out of the roundhouse 5 or 10 minutes while the Chinamen were there, and that this jackscrew near the step was not placed under the engine, in position to elevate it, and that the step was not
Ninth. The engine left Toyah at the usual hour of 2 a. m. on the morning of the 1st of December, 1892, and arrived at the usual hour at El Paso, 10:30 a. m.; and plaintiff and engineer got off-the engine several times, while it was standing, on the right side, and neither of them noticed anything the matter with the step. After they arrived in El Paso, they both left the engine attached to the train at the depot, getting off the engine on this right side, using this step, and went to their homes, and neither noticed anything wrong with the step.
Tenth. A short time after the engine arrived in El Paso, the hostler, .or a man whose duty it is to take it, coal it, etc., and put it in the roundhouse, took charge of it, detached it from the train, ran it into the yard, and set it on a transfer track, and left it there an hour or so; then took it to the coal cars, and left it there for the coal heavers to coal up, and it remained there an hour or more. The coal 'is placed in the tender, back of the engine, and piled up pretty high; and some of the pieces are a foot or 18 inches long, and 6 or 8 inches wide, and very heavy, and one of them, falling off the gangway, might strike the step. When the hostler went, later, to get the engine from the coal yards, the plaintiff was on the engine. The hostler ran the engine from where it was coaled, and was nioving it to the proper position, near the sandhouse, to have the fire cleaned out. It was something near an hour from the time the hostler started to leave the coal yards before he got
Elevenlh. Plaintiff knew that there were servants and employes of the defendant for the purpose of inspecting and repairing his engine, and that the opportunity given to do this was when the engine was placed in the roundhouse at El Paso, and that at the time he fell and was injured the engine was not yet placed in the roundhouse, where it would be inspected and repaired.
Twelfth. The cause of the turning of the step when plaintiff fell was on account of the nut heretofore described, on the top of the casting, not being taut, but it had become loose, leaving the rod to which the step was attached so it could be easily turned. It was the duly of the engineer who operates an engine to inspect and report: all defects in repairs necessary on Ms engine, in a hook kept for that purpose at each place, at the end of his run,—in this 'instance, at El Paso and at Toyah,-—and on the day that the plaintiff was injured the engineer entered the following report at El Paso a few minutes after they arrived: “Pilot raising, and wash out engine” (that is, the pilot needed raising, and the engine should be washed out),— and he did not discover or report that; the said step was loose, if it was loose at the 1 Line.
Thirteenth. The defendant had proper and competent inspectors to inspect and repair engines in the yards at El Paso and Toyah, in addition to the inspections made by the engineers, and that at the time plaintiff was hurt the yard inspectors and mechanics had had no opportunity, under the routine and custom as to handling, coaling, sanding, cleaning, inspecting, and repairing engines
Fourteenth. Plaintiff’s business in November and December, 1892, was fireman of a locomotive engine, and he had been engaged in that business about seven years.
Fifteenth. Plaintiff did not know that said step on the engine was in a loose or defective condition at the time he stepped down, on the same and was injured. That the manner in which the plaintiff got off the engine, backwards, was a careful and prudent manner, he alighted in a careful and prudent manner, in the usual manner to alight from an engine, whether in motion or standing still, and that, if said step had been in repair, there was no danger in the manner in which plaintiff alighted from the engine.
Sixteenth. Plaintiff testified that it was the custom of the firemen to go to their engines in the yard before they were put in the roundhouse, and do their work of cleaning such part of the engine as it was their duty to clean, and clean out and fill the lubricator's and fill the-oil cans; but, on being asked, he could not mention the name of any other fireman employed on defendant’s passenger engines who did this, besides himself. He stated that his reason for doing this work on the engine at that time was that the weather was getting cool, and he had to strain his oil, and he would set his cans out in the gangway, near the engine, so that the warmth would make it easier and quicker work to handle the oil properly, whereas, if he had waited until the engine was in the roundhouse, the oil would have been somewhat chilled, and more difficult to handle, and that for some time previous he had been going on the engine and doing this work while the engine was in the yard, and before it had been placed in the roundhouse.
Seventeenth. Mr. Wheeler, who is superintendent of terminal and foreman of the shops in El Paso, for defendant, the hostler Taylor, and the machinist Eossiter, employes in the defendant’s yard and shops in El Paso, testified that plaintiff was the only fireman of a passenger engine that went upon his engine in the yard in El Paso to do his work before his engine had been placed in the roundhouse, and that they had known him to do so three or four times before the accident.
Eighteenth. All the witnesses except the witness A. C. Wheeler, superintendent and foreman of defendant, testified that the nut above described, used to tighten the step, would not probably work loose, in making the trip from El Paso to Toyah and back, by the ordinary jar
“If plaintiff was a fireman upon one of the defendant’s engines pulling passenger trains over ihe track into El 1’aso, where defendant had repair shops, and competent persons to repair its engines, and plaintiff knew of this, and on the day that lie was injured the engine on which lie was employed as fireman arrived in El Paso apparently in good condition, and tlie plaintiff left said engine, and it was taken in charge by servants of tlio defendant wiiose duty it was to inspect and repair it, and ho knew lie would have ample time afforded him after the same was inspected and repaired to perform his duties on said engine, in cleaning the same, and have the appliances and implements pertaining to said engine in his immediate charge in proper condition for his outgoing trip on said engine, it was his duty to give servants of defendant opportunity to inspect and repair the engine- and appliances before going on said engine, while it was in motion; and if he did not do this, but went on said engine knowing that, the same had not yet been inspected and repaired, for the purpose of performing his duties in cleaning and putting in iiroper condition the lubricators, oil cans, and other apparatus which it was his duty to clean and prepare, and in doing so attempted io alight from said engine while it was in motion, when such alighting was not necessary in the performance of such duties, and the step of the engine was in such defective condition that it was unsafe for use in getting off the engine while in motion, and in so alighting lie was injured by reason of such unsafe step, he would lie guilty of contributory negligence, and not entitled to recover any damages from defendant, even if, in alighting, he did so in such a careful manner as a prudent man would exercise if the step were unsafe.”
These special instructions the court refused, and thereupon charged the jury as follows:
“The plaintiff brings suit against the defendant to recover damages for personal injuries, claiming, brieily and in effect, that while engaged in the service of the defendant, and in the performance of his usual and ordinary duties, as fireman on passenger engine No. 00, he was seriously injured because of the negligence of defendant in failing to keep the step of the engine in suitable condition and proper repair for use by its employes. Recovery is sought by plaintiff on the ground of alleged negligence on the part of defendant, and, to entitle him to recover, such negligence must be proved as alleged. The general principles of law touching the duties of individuals and corporations in supplying machinery or mechanical appliances for their employes are thus stated by the supreme court: ‘Neither individuals nor corporations are bound, as employers, to insure the absolute safely of the machinery or mechanical appliances which they provide for the use of their employes. Nor are they bound to supply the best and safest or newest of those appliances for the purpose of securing the safety of those who aro thus employed. They are, however, bound to use all reasonable care and prudence for the safety of those in their service, by providing them with machinery reasonably safe and suitable for the use of the latter. If the employer or master fails in his duty of precaution and care, lie is responsible for any injury which may happen through defect of machinery which was, or ought to have been, known to him, and was unknown to tho employe or servant. But if the employe knew of the defect in the machinery from which the injury happened, and yet remained in the service, and continued to use the machinery, without giving any notice thereof to the employer, he must be deemed to have assumed the risk of all danger reasonably to be apprehended from such use, and is entitled to no recovery. And, further, if the employe himself has been wanting in such reasonable care and prudence as would have prevented the happening of the accident, he is guilty of contributory negligence, and the employer is thereby absolved from responsibility for the injury, al though it was occasioned by .the defect of the machinery, through the negligence of the employer.’ Railroad*266 Co. v. McDade, 135 U. S. 570, 10 Sup. Ct. 1044. It is only the duty of a railroad corporation to use all reasonable care and prudence for the safety of employes, by providing them with machinery reasonably safe and suitable; but it is their further duty to use such reasonable care and prudence in seeing that the machinery furnished then- employes is kept in good order and repair. It is contended by the defendant in this case that the defendant had in its employment at El Paso and Toyah competent persons to inspect and repair its engines whenever it became necessary to do so, and that in such respect the defendant performed its full duty to all persons in its employment, and that if there was any negligence in the performance of their duties by machinists or mechanics, in inspecting and repairing the engine, it was the negligence of a fellow servant, for which the defendant would not be liable. This contention on the part of defendant is not supported by the best authorities. The duty of keeping in proper repair the machinery and other appliances furnished to servants by the defendant cannot be delegated to another servant, so as to exempt the defendant itself from liability caused by the negligent omission of the servant to whom the duty was delegated. The mere fact that the defendant had in its employ a competent car inspector, mechanic, and machinist would not itself exonerate it from liability if the engine step was defective in construction, or not in proper repair, for he was a representative of the defendant, and not a fellow servant of plaintiff, in the sense contended by defendant’s counsel; and if he failed to exercise due and reasonable care in reference to the inspection of the engine, including the step, and keeping the same in proper repair, then for any negligence, or want of reasonable and proper care, on his part, in that respect, from which injury resulted to plaintiff, the defendant would be liable. In this immediate connection, your attention is directed to another principle of law touching the duty of plaintiff: He was bound to exercisé reasonable and ordinary care to avoid injuries to himself; and if the engine step, at the time he was hurt, was defective, and he knew—or might have known, by ordinary' care and attention—its condition, and then exposed himself to danger; in other words, using the language of the supreme court, ‘If he did not use his senses as men generally use theirs, to keep from harm,’—he cannot complain of the injury from which he suffered. But the principle of the law as to the duty of plaintiff -under such circumstances is subject to the qualification that he was not required to inspect the engine to ascertain whether or not there were latent or hidden imperfections or defects in or about it, if there were any defects at all, which rendered its use more hazardous. That was a duty of defendant. The general principle of the law being that, ‘unless the defects are such as to be obvious—open to common ’ observation—to any one giving attention to the duties of the occasion, the employe has the right.to assume that the employer has performed his duty with respect to the implements and machinery furnished. If the defendant performed its .duty by using all reasonable care and prudence for the plaintiff’s safety, by providing him with machinery reasonably safe and suitable for his use, and if, further, the defendant had in its employment competent inspectors and machinists, whose duty it was to inspect engine No. 90, and make thereon ' all necessary repairs, and if such inspectors and machinists used reasonable care and diligence in the performance of their duties, and made all such repairs as they could have discovered to be necessary by the exercise of reasonable care and diligence, -then for any injuries received by the plaintiff on account of defects in the appliances which had not been observed by the inspectors and machinists the defendant would not be liable, and the plaintiff, in that event, could not recover. Bearing in mind the foregoing directions, you will inquire whether the step of the engine, at the time the plaintiff was hurt, was in good order and repair. If it was, then it would be your duty to return a verdict in favor of the defendant. If, however,'the engine step (and I mean, by the use of the word ‘step,’ to include the rod or shaft, the nut, and the flat piece of metal attached to the lower end of the rod) was defective and,unsafe, and the defendant knew of its defective and unsafe condition, or could have discovered it by the exercise of reasonable care and diligence, and the plaintiff was ignorant of the defect, and could not have ascertained it by the exercise of ordinary care and caution, and if the injuries to the plaintiff resulted from such unsafe and defective condition of the step,—that is to say, if, as claimed*267 by the plaintiff, the step turned when he attempted to descend from the engine, —and if, in consequence thereof, without negligence on his part, he was injured, then yon will return a verdict in favor of the plaintiff fox such amount of actual damages as will compensate him for the injuries he has sustained. As before stated to you, the law requires the plaintiff to take due, and proper are of himself; and if, at the time of the accident, he failed to exercise that degree of care and caution which a person of ordinary prudence would have exercised under similar circumstances of the situation, and his injuries resulted from such want of care and caution, then ho would not be entitled to recover; and your verdict, in (hat event, should bo for the defendant. The qufisión of negligence of plaintiff, on the one hand, and of defendant, its agents and servants, on the other, is a question of fact, which is submitted solely to your deiermination, and one which you will determine for yourselves from a consideration of all the facts and circumstances in evidence.”
And to .said charge of the court, given the jury, the defendant, in open court, then and there excepted, because said charge failed to instruct the jury that plaintiff would be guilty of contributory negligence in going upon and alighting from said engine, while it was in motion, until after the proper servants of the defendant had liad an opportunity to repair the same after it arrived in the yards at El Paso, as in defendant's special charge above requested; and the court then and there overruled said exceptions to the charge.
The only error assigned, and relied on to reverse the judgment, is that the court erred in refusing to give the charge requested by the defendant, as shown above. Tire request for that charge, in effect, asked the court to direct a verdict for the defendant. The hypothesis <is to the proof made in the requested charge only embraced matters of fact, about which there was no dispute, as most clearly appears by the narrative of the proof in the bill of exceptions, above set out. The reason given for this charge in the request is that the plaintiff was guilty of contributory negligence. This may not be technically correct, as contributory negligence is generally defined where a definition is attempted in adjudged cases. In Sullivan v. Mining Co., the trial judge directed a. verdict for the plaintiff, giving a reason for so doing which was held to be unsound; but the judgment was affirmed because the direction was right, though technically erroneous, as expressed. 143 U. S. 431, 12 Sup. Ct. 555. In Kirby v. Estill the supreme court of Texas, in reference to a similar question presented to them, say:
“While the court may not have erred in refusing to give the several special changes, In tile form they were requested, we think they were sufficient to call jhe attention of the court to file important matter embraced In them. On the case made by the evidence, wo think the court should have instructed the jury to return a verdict for the plaiutiff.” 75 Tex. 484, 12 S. W. 807.
The charge to the effect that the plaintiff was “not entitled to recover any damages from defendant” may have been a proper charge to give, although the plaintiff was not shown to have been guilty of contributory negligence. Clearly, if there was no proof tending to show negligence on the part of the defendant, the jury should have been instructed that the plaintiff could not recover. In two cases decided by this court, at the present term, (Southern Pac. Co. v. Burke, 60 Fed. 704, and Railroad Co. v. Thomas, Id. 379), we
In the case now before us, the only defect in the machinery, that contributed to the injury, suggested by the pleadings or by the proof, was that' the step on the right-hand side of the engine, which plaintiff used in carefully alighting from the engine while in motion, baching slowly at the rate of not more than three or four miles an hour, was not. tightly fastened. The step was of the customary and proper kind, in no other manner defective. It had been taken off the last time the engine was in the El Paso yards, two days before this injury. It had been put on again, and well fastened, before the engine was taken out: The plaintiff assisted Eossiter in tightening up the nut, and both Eossiter and plaintiff testify that the nut was properly screwed on at El Paso, and would not have become loose in a trip from El Paso to Toyah and return. There is direct proof that the nut on the step was not moved while the engine was at Toyah on that trip. Plaintiff testified that the step struck nothing in running that trip from El Paso to Toyah and return. It was proven that the nut and threads of the step rod were in good condition, and had not worked loose since the accident to plaintiff. The day of the accident the engine left Toyah at the usual hour (2 a, m.), and arrived at El Paso at the usual hour (10:30 a. m.); and plaintiff and the engineer got off the engine, on the fight side, several tiihes, while it was standing, and neither of them noticed anything the matter with the step. After they arrived in El Paso they both left the engine attached to the train at the depot, getting off the engine, on this right side, using this step; and neither of them noticed anything wrong with the step. There is no evidence tending to prove that up to this instant the step was not all right. On the contrary, all the evidence.on that subject tends strongly to prove that up to this instant the stop was all right. It may not have been the duty of the fireman to inspect this step, which he was constantly using, on the run from El Paso to Toyah and return; but it was the duty of his engineer, qnd they were fellow servants. Railroad Co. v. Baugh, 149 U. S. 368, 13 Sup. Ct. 914. The engineer did not report or discover that the step was out of order. If in fact it was so at this instant, or previously, after the plaintiff had assisted the machinist in fixing it all right in the shop at El Paso, immediately before beginning the run to Toyah, how could the master know it, of have discovered it? The engineer was a competent, skillful, careful servant. The plaintiff had been engaged as fireman of a locomotive engine for seven years; was in the prime of life (34 years of
See ante, pages 260, 262-264.
Dissenting Opinion
(dissenting). I am unable to concur in the opinion and judgment of the court in this case, and will state, as briefly as I can, the grounds of my dissent:
The assignments of error presented by the record are that:
“First. The trial court erred in refusing to give the jury defendant’s special instructions as follows, to wit: ‘If plaintiff was a fireman upon one of defendant’s engines, engaged in pulling passenger trains over tfie track into El Paso, wkere the defendant liad repair sfiops, and competent persons to repair its engines, and plaintiff knew tkis, and on that day that he was injured the engine on which he was employed as fireman arrived in El Paso in apparently good condition, and plaintiff left said engine, and it was taken charge by servants of the defendant, whose duty it was to inspect and repair it, and he knew he would have ample opportunity afforded him, after the same was inspected and repaired, to perform his duties upon said engine, in his cleaning the same, and having the appliances and implements pertaining to said engine in his immediate charge, in proper condition for his outgoing trip on said engine, it was his duty to give servants of the defendant opportunity to'inspect and repair the engine and appliances before going on said engine while it was in motion; and if he did not do this, but went on the engine, knowing the same had not yet been inspected and repaired, for the purpose of performing his duties in cleaning and putting in proper condition the lubricators, oil cans, and other apparatus which it was his duty to clean and prepare, and in doing so attempted to alight from said engine while it was in motion, when such alighting was not necessary in the performance of such duties, and the step of the engine was in such defective condition that it was unsafe for use in getting off of the engine while in motion, and in so alighting he was injured by reason of unsafe step, he would be guilty of contributory negligence, and not entitled to recover any damages from defendant, even if, in alighting, he did so in such a manner as a prudent man would exercise if the step was safe.”
And, second:
“The trial court erred in not granting defendant’s motion for a new trial, and setting aside the verdict and granting a new trial, as, under the evidence, the verdict of the jury is greatly excessive.”
As to the second assignment of errors, suffice it to say that it is not permitted for this court, sitting as a court of errors, in a case wherein damages have been fixed by the verdict of a jury, to take notice of an assignment of this character. Railroad Co. v. Fraloff, 100 U. S. 31; City of Lincoln v. Power, 14 Sup. Ct. 387, 151 U. S. 436. And in Holder v. U. S., 14 Sup. Ct. 10, the supreme court said, “It has also been settled by a long line of decisions of this court that the denial of a motion for a new trial cannot be assigned for error.” The only assignment of error, then, presented for our consideration, and the only error urged or discussed by counsel for plaintiff in error, was the refusal of the trial court to give the charge hereinabove set out. The request for that charge was, in effect, asking the court to direct a verdict for the defendant on the ground that the plaintiff was guilty of contributory negligence. The evidence in reference to which this charge was requested, and on which it must, have been based, is found
