Southern Pac. Co. v. Burke

60 F. 704, 9 C.C.A. 229, 1893 U.S. App. LEXIS 2371

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 20, 1893
• Docket: No. 61
• Status: Published

Opinions

LOCKE, District Judge

(after stating the facts as above). The substance of the error assigned herein is that the court overruled defendant’s demurrer to plaintiff’s petition, and refused to instruct the jury to find a verdict for the defendant, and left the question of negligence on the part of the defendant or contributory negligence on the part of the plaintiff for their consideration. In Railroad Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, Chief Justice Fuller says:

“The case should not be withdrawn from the jury unless the conclusion followed, as a matter of law, that no recovery could be had upon any' view which could be properly taken of the facts the evidence tended to establish.”

It is for the judge to say whether any facts have been established by sufficient evidence from which negligence can be reasonably inferred, and it is for the jury to say whether from those facts, when submitted to them, negligence ought to be inferred. Randall v. Railroad Co., 109 U. S. 478, 3 Sup. Ct. 322. The judge below found that the facts were established from which negligence might be inferred, and the jury has said that negligence ought to be inferred from them; and we have only to inquire whether the judge erred in so submitting the question, or, in other words, whether, in any view which' could be taken of the facts, as a matter of law recovery could be had. The facts are plainly and distinctly stated in the testimony, and it but remains to apply them to the law. It has been repeatedly declared by the supreme court that while employés must assume the risk incident to the positions which they accept, and to the negligence of fellow servants, to a certain extent, yet the servant does not assume risks arising from want of skillful colabor-ers, or defective machinery. In Hough v. Railroad Co., 100 U. S. 213, Justice Harlan says:

“The obligation still remains to provide and maintain in suitable condition the machinery and apparátus to be used by its employés; an obligation the more important, and the degree of diligence in its performance the greater, in proportion to the dangers which may be encountered.”

—Citing and approving Ford v. Railroad Co., 110 Mass. 241, where such doctrine is declared at more extended length. In Railroad Co. v. Herbert, 116 U. S. 642, 6 Sup. Ct. 590, Justice Field, in expressing the same idea, says:

“The servant does not undertake to incur the risks arising from the want of sufficient and skillful colaborers, or from defective machinery or instruments with which he is to work. His contract implies that, in regard to these matters, his employer will make adequate provisions that no danger shall ensue to him. This doctrine has been so frequently asserted by courts of the highest character that it can hardly be considered as any longer open to serious question.”

Railroad Co. v. McDade, 135 U. S. 555, 10 Sup. Ct. 1044.

In this case the testimony was that the couplings were not in their construction intended to be used together, and in making con-° nections with them there was unusual danger; that they were, though; habitually and constantly used together by defendant company; that plaintiff was acquainted with the company’s rule in regard to making such couplings, and was following it to the letter when he was hurt;, that he had been switching about two years, but had never had to make such couplings more than two or three times; that the pin used was a square or flat pin, and that had it been a round pin, fitting the hole in which it was used, he could have drawn it out with his hands, but, as it was, when he found it jammed he was compelled to. get a rock and attempt to drive it out, when he was injured by the backing train. The defendant introduced no evidence that the pin used was not a pin regularly furnished for such purpose, or that any more suitable one was provided, and we consider that an inference favorable to plaintiffs claim might reasonably be drawn from such testimony, standing uncon-tradicted and unexplained. Whether or not the character of the coupling and pin was faulty, and known to be so by defendant or defendant’s officers, so that negligence might be inferred from their use, was certainly not a question of law upon which the court should pass; and whether the plaintiff was guilty of contributory negligence in going and remaining between the cars, while endeavoring to obey the commands of his superiors, could only be decided as a question of fact. Railroad Co. v. Stout, 17 Wall. 657; Railroad Co. v. McDade, 135 U. S. 555, 10 Sup. Ct. 1044.

In Kane v. Railway Co., 128 U. S. 91, 9 Sup. Ct. 16, a case in which the question of contributory negligence had been withdrawn from the jury, and a verdict for the company directed, which was held to be error, the question was whether the plaintiff, in attempting to pass over cars when he knew that a step was missing from one of them, on account of which fault he fell, and was injured, was in so doing guilty of contributory negligence so as to justify the court in withdrawing the question from the jury and directing a verdict for the defendants. The supreme court held, in effect, that in the case of an employé not abandoning his station and duty upon the discovery of an insufficiency of appliance or apparatus, but remaining and attempting to do the best he could, the entire surrounding circumstances should be submitted to the jury for them to determine whether or not he was so guilty of contributory negligence as to forfeit his right to recover. Tins we consider a safe and reasonable rule, and one which may be applied to this ca$e, and that the question was properly submitted to the jury whether, under the circumstances, the plaintiff, in remaining and endeavoring to complete the coupling, although he found the square pin jammed in a round hole, was so guilty of contributory negligence as to prevent a recovery.

In Jones v. Railroad Co., 128 U. S. 444, 9 Sup. Ct. 118, Justice Miller, in speaking of the questions of negligence on the part of defendant and contributory negligence of the plaintiff, says:

“But we think these are questions for the jury to determine. We see no reason, so long as the jury system is the law of the land, and the jury is made the tribunal to decide disputed questions of fact, why it should not decide such questions as these as well as others.”

In Railroad Co. v. Cox, supra, when the same question — the defect of coupling apparatus and the use of the square pin in a round hole — was under consideration, Chief Justice Fuller says:

"We think the evidence given in the record tended to establish that the coupling apparatus and the track were in an unsafe and dangerous condition; that the injury hapi>ened in consequence; and that those defects were such as must have been known to the defendants under proper inspection, and unless they were negligently ignorant.”

In this case we think there was testimony which, uncontradicted as it was, tended to show that the appliances furnished for the coupling of the cars were insufficient, and rendered such duty unusuañy and unnecessarily dangerous, and in the performance of his duty, and on account of the fault of such appliances, plaintiff was injured; and whether or not such was the case was properly submitted to the jury. We therefore find no error in the record, ] and the judgment below is affirmed, with costs, and it is so ordered.