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Count No. 5 is practically the same as count No. 1, with the following addition:

“And plaintiff avers that the said train was being made up under the super-, intendence of one Allen, who was defendant's yardmaster at said Boyles, and while in the exercise of such superintendence the said Allen negligently ordered or directed the said train to be made up in such a place as that it was necessary to switch the cars around a curve, and as that the engineer in charge of the engine engaged in making up said train could not see the length of his train, and that the said train was not in view of the employés engaged in making up said train, and by reason of the negligence of the said Allen while engaged in such superintendence plaintiff's intestate received as a proximate consequence the injuries which caused his death as aforesaid."

Defendant interposed nine pleas, and, on settlement of the pleadings, demurrers were sustained to the second, seventh, and eighth pleas. Defendant's pleas, as allowed, set up, first, the general issue; and, second, the contributory negligence of the deceased, on the following grounds:

That he knew that the train was being made up on the track at said place, and that it was his duty to wait until it was made up before commencing to inspect it; that it was his duty, and he knew it to be such, to prevent harm by placing a blue flag at the end of each of said cars, and he failed to do so; that he had no duty to perform at the place where he was at the time he received his injuries; that he went in between two cars that were standing still, without looking to see whether an engine and cars were approaching upon said track; that there was nothing to obstruct his view; that, had he looked, he would have seen the cars approaching; that the cars were standing on said track, and he knew the train was being made up by the engine and cars approaching in a curve; and that the position where he was inspecting said cars was on the outside of the curve, where he could not see the engine, and he negligently, knowing that he could not see the engine, went between the cars.

Defendant's plea No. 2 is substantially covered by the pleas allowed. Plea No. 7 sets up the negligence of plaintiff's intestate in failing to comply with defendant's rule No. 315, of which he had knowledge, and plea No. 8 sets up his knowledge of, and negligence in failing to comply with, defendant's rules No. 316 and No. 38. The rules referred to are as follows:

Rule 315: "They must carefully examine the couplings in trains after they are made up, and see that the links and pins are of proper size, and report to the yardmaster any imperfections.”

Rule 316: "When inspecting or repairing cars that they do not wish moved, they must protect themselves by placing conspicuously a blue signal on both ends of the car, as provided in rule 38. When necessary to make repairs on a car in a train, they must place blue signals on both ends of the train before commencing work. If an engine is attached to it, they will place a blue signal upon the engine.”

Rule 38: "A blue flag by day and a blue light by night, placed on the end of a car, denote that car inspectors are at work under or about the car or train. The car or train thus protected must not be coupled to or moved, until the blue signal is removed by the car inspectors. When a car or train standing on a siding is protected by a blue signal, other cars must not be placed in front of it so that the blue signal will be obscured, without first notifying the car inspector, that he may protect himself."

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Defendant offered these rules in evidence at the trial and the court admitted rule 315, but excluded rules 316 and 38.

Defendant assigns as error, among other grounds, the sustaining of demurrers to its pleas Nos. r and 8, the exclusion of rules 316 and 38, and the refusal of the court to give the following instruction:

“If the jury believe the evidence, they will find for the defendant."

The plaintiff introduced but one witness, C. H. Wilson, also a car inspector on duty at the same time, as to the actual happening of the accident. We excerpt from his testimony as follows:

""Train No. 101 was made up at Boyles, the schedule time to leave was 6:50, and the injury occurred a few minutes after 5 o'clock. The fact that a curve existed there did not obstruct the view of an approaching engine to deceased. The point where this train was made up was the point where it was usually made. Ezell had worked there since December, and I think before that. Rules 315, 316, and 38 were in force at that time. At the time the train struck the deceased it had not been completed. It was necessary to put the four cars on that were attached to the engine. The car inspectors had no duty to perform with respect to this train until it was made up complete, unless of their own will. If they did anything at all, it was a voluntary act. The orders we got from the master car builder when we went to the yard was to wait until the train was completely made up before going in to make the couplings or doing anything at all. Ezell had no duty to perform with respect to this car until No. 101 was made up complete. There was nothing to do on No. 101, just risking his judgment, like I was risking my judgment."

Joseph Jacob was the only witness who testified for defendant. His uncontradicted evidence is, in part, as follows:

"I was foreman of the car department of the Louisville & Nashville Railroad at Birmingham, including the yard at Boyles, in July, 1906, and knew Ed. Ezell. At that time he was a car inspector. I was general foreman and supervisor over the car inspectors. I instructed him very careful, and never to go between the cars while switching, and told him the danger of it. Rules 315, 316, and 38 were in force. I examined him with reference to his knowledge of the rules before I put him on as extra inspector. I put him on as extra inspector, and he afterwards became general inspector.”

The entire evidence is before us, and the undisputed facts seem to be as follows: On the day of his death, July 4, 1906, deceased was employed by defendant as car inspector at Boyles, a suburb of Birmingham, Ala. While he was between two cars of a number standing on the track, the engine backed up several more cars for the purpose of coupling them to those standing, to complete the train. Because of the shock of the coupling he was thrown down, and the train rolled over him and killed him. He was an experienced car inspector, and was familiar with the rules of the company. At the time he met his death, he was not called on or required to go in between the cars in his line of duty. The train had not been fully made up, and he was only in a position of danger because of his violation of the defendant company's rules, adopted for the protection of the very class of employés to which he belonged. There was no occasion for haste. The train was not to leave for at least an hour and a half after he went between the cars. The train was being made up at the usual place and in the usual manner of making up trains at Boyles. He knew, or he cught to have known, that the train was not completed when he went

in between the cars, and if he had looked he could have seen the approaching engine.

We think the demurrers to pleas 7 and 8 should have been overruled, and that rules Nos. 316 and 38 should have been admitted in evidence. Further, we believe that, even on the state of the case as made up, defendant below was entitled to the peremptory instruction in his favor.

The judgment of the Circuit Court is reversed, and the case is remanded, with instructions to grant a new trial.

SHELBY, Circuit Judge (dissenting). The court, by the opinion just read, has reached the conclusion, on the case shown by the record, that "the defendant below was entitled to the peremptory instruction in its favor.” This conclusion could only be reached on the ground that the plaintiff's intestate was guilty, as matter of law, of contributory negligence. It appears that the alleged contributory negligence charged against the deceased in the opinion consists (1) in a disregard of the rules of the railroad company, and (2) in going between the cars when, "if he had looked, he could have seen the approaching engine" which pushed the cars over him and killed him.

1. The deceased went between the cars to make a coupling of the air hose. He was performing the duty, according to the evidence, in the usual way. C. H. Wilson testified:

"The inspectors at the time of making up the train were supposed to couple the air hose as quickly as could be done. They were coupling up while the train was being made up, if the cars were standing still, and no engine attached to it. That was the custoni at Boyles.”

If the rule is to be construed to forbid the inspector from going between the cars for that purpose, the evidence shows that it was not practically enforced—that it was the custom to perform the duty just as the deceased was performing it. A railroad company cannot defend by showing a printed rule which has been violated, if it appears from the proof that the rule was customarily disregarded, and that this was known to the agents of the road in charge.

Wilson further testified:

“I could not say whether Mr. Burke, who was assis ant general yardmaster, paid any attention to me and my assistant coupling the air hose on my train or not. He was all over the yard while the work was going on. He did not object, or caution 'me not to do so. Coupling while the train was being made up on the main line was generally done in the presence of the yardman there."

It has been well said:

"A railroad company does not discharge its whole duty to the public by merely framing and publishing proper rules for the conduct of its business and the guidance and control of its servants; but it is also required to exercise such a supervision over its servants and the prosecution of its business as to have reason to believe that it is being conducted in pursuance of such rules.” Whittaker v. D. & H. C. Co., 126 N. Y. 544, 549, 27 N. E. 1042; L & N. R. R. Co. v. Richardson, 100 Ala. 232, 236, 14 South. 209, 211.

The charge of the trial judge, which is made a part of the bill of exceptions, shows that he properly submitted the question to the jury as to whether or not the rule was in force, or was customarily disre

garded within the knowledge of the officers of the company. This was right, "it being a question for the jury whether the rule had been waived by the company, or whether there was any attempt to enforce it in good faith." C., C., C. & St. L. Ry. Co. v. Baker, 91 Fed. 224, 33 C. C. A. 468; Lake Erie & W.R. Co. v. Craig, 80 Fed. 488, 25 C. C. A. 585; 1 Labatt on Master & Servant, § 232, and cases there cited.

The master will not be permitted to suffer a general nonobservance of a rule designed to promote the safety of his servants, and then revive it for the purpose of tripping up and defeating the action of a particular servant, who, but for the rule, has an action against him for damages. 5 Thompson on Negligence, $ 5404.

2. The court, in the opinion just read, makes a summary of what it decides are the "undisputed facts.” This statement concludes: "When he [the deceased) went between the cars,

if he had looked, he could have seen the approaching engine."

The only evidence that tends to sustain this conclusion is a single ambiguous statement of C. H. Wilson:

"The fact that a curve existed there did not obstruct the view of an ap proaching engine to the deceased.”

That the witness did not mean that Ezell; the deceased, could have seen the engine from where he stood, is shown by the witness' further examination:

“I was on the west side where I could see the engine, and he [the deceased) was on the south side where he could not see the engine.”

At another point in his examination he, in effect, repeated that Ezell could not have seen the approaching engine:

“He could not have seen the engine and the four cars where he entered be tween the cars."

The evidence does not, in my opinion, justify the conclusion that the deceased could have seen the approaching engine from where he entered between the cars. The statement of Wilson is directly to the contrary: The deceased “was on the south side, where he could not see the engine."

It follows, in my opinion, that, so far as this contention is concerned, the trial court ruled correctly in submitting the question of contributory negligence to the jury.

MARBURY et ux. v. ILLINOIS CENT. R. CO. et al.

ILLINOIS CENT. R. CO. et al. v. MARBURY et ux.
Circuit Court of Appeals, Sixth Circuit. January 5, 1910.)

Nos. 1,965, 1,966.

Plaintiff, who was recovering from a severe illness, by advice of her physician went in January from Memphis to New Orleans, traveling on the railroad of one of the defendants, and riding in a sleeping car of the

other defendant. The weather at Memphis was very cold, with ice and "For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

snow on the ground. The car was not heated until four hours after leave ing Memphis, although defendants were advised of plaintiff's condition, and she suffered continuously from cold during that time. The second day after reaching New Orleans she suffered a relapse, and was again very ill for several months. In an action against defendants for negli. gence, on the question of damages, physicians were called as experts, and, while admitting that the relapse and subsequent illness might possibly have been due in whole or part to exposure in going to and from the stations and the fatigue of the journey, they without exception expressed the opinion that the far more probable cause was the continued exposure to cold in the car. Held, that such evidence was sufficient to require the submission of the question to the jury.

[Ed. Note.--For other cases, see Carriers, Dec. Dig. 8 320.*] In Error to the Circuit Court of the United States for the Western District of Tennessee.

Action by C. C. Marbury and Mrs. C. C. Marbury against the Illinois Central Railroad Company and the Pullman Company. Judgment for plaintiffs, and both parties bring error. Reversed on plaintiffs' writ of error.

This suit was brought in the circuit court of Shelby county, Tenn., by William Messick and Mrs. Mary Messick, his wife, against the Illinois Central Railroad and the Pullman Company, to recover damages for alleged negligence. On petition of defendants the case was removed to the court below.

It was stated in the declaration in substance that on January 7, 1905, Mrs. Messick was a passenger in a sleeping car of the Pullman Company on one oť the trains of the railroad company, from Memphis to New Orleans; that the weather was extremely cold, and the sleeping car was allowed to be and remain. unheated for several hours and until the train reached Grenada, Miss.; that Mrs. Messick was in a delicate condition, recovering from a severe illness of several months, and this information was given to the defendants at the time plaintiff boarded the car; that Mrs. Messick suffered a relapse, which permanently affected her health and wrecked her nervous system. To this declaration the defendants each filed a plea of not guilty.

William Messick died, and the suit was revived in the name of his widow. Subsequently Mrs. Messick married C. O. Marbury, and thereupon an order was entered by the court that the case be prosecuted in the name of C. C. Marbury and Mary Marbury. The case brought here was the result of a sec ond trial; a verdict being rendered in favor of plaintiffs against both defend. ants for $750. Plaintiffs for themselves and the defendants have each prose cuted error to this court.

John E. Bell, for plaintiffs.
Albert H. Biggs, for defendant Illinois Cent. R. Co.
Thos. H. Jackson, for defendant Pullman Co.

Before LURTON, SEVERENS, and WARRINGTON, Circuit Judges.

WARRINGTON, Circuit Judge (after stating the facts as above). So far as Mrs. Marbury is concerned, the complaint is that the court in its charge to the jury erred in limiting recovery to such damages as a person in average health would suffer, without resulting sickness, inconvenience, or injury, from riding for several hours on a cold day in a sleeping car which was not supplied with heat, and in withdrawing from the jury all evidence relating to plaintiff's real condition and to damages resulting from her subsequent relapse and sickness. *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexen

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