Miller v. Union Pac. Ry.

• Citation: 12 F. 600
• Parties: MILLER v. UNION PACIFIC RY.
• Decision Date: 01 June 1882
• Court: U.S. District Court — District of Colorado

12 F. 600

MILLER v. UNION PACIFIC RY.

United States Circuit Court, D. Colorado.

June, 1882

L. S Dixon and G. H. Gray, for plaintiff.

Willard Teller, for defendant.

McCRARY C.J.

The complaint avers, among other things, the following facts:

First. That the defendant contracted with plaintiff for his services as a carpenter to work at his trade for defendant, and that by the terms of the contract plaintiff was to report to and work under the orders and instructions of a foreman employed by the company to superintend and oversee the carpenter work of said company at a certain coal mine, situated on a branch line of defendant's railroad in Elbert county, Colorado.

Second. That plaintiff was directed to and did proceed to said coal mine, and there reported to one Miles McGrath, the foreman of said company, there engaged in the superintendence and oversight of the carpenter work of said company at said coal mine, and who was also, in like manner, a foreman of said company to superintend, oversee, and perform work for the company, with carpenters under him, at other places, as he might be from time to time directed by the company.

Third. That by said contract plaintiff was to continue in the service or employment of said company until he should voluntarily withdraw from the same, or until he should be discharged from the same by order or direction of the said foreman, Miles McGrath.

Fourth. That plaintiff entered upon service in pursuance of the contract, and commenced work under the orders of said McGrath, and so continued until January 19, 1880, when he was injured as in the complaint stated.

Fifth. That the company had, upon its said branch line, a certain four-wheeled platform car, commonly denominated a 'push-car,' which was wholly unprovided with any machinery or other mechanical means of propulsion or movement, and was designed to be and was moved and propelled along the track by the hands of laborers or men walking behind and pushing the same, except at those places where by the downward grade or descent of the track the same would be moved and carried along by the law of gravitation.

Sixth. The said car was provided with no brakes or other means of checking its speed when in motion.

Seventh. That said car had been and then was in frequent and common use by said company, in the departments of repair and construction of said company, upon said branch road and upon a certain section of the main line, and was furnished by said company to be so used, in the movement and transportation of tools and materials, and, as occasion might serve or require of laborers and workmen upon and along said branch road and a portion of said main line.

Eighth. That on two occasions plaintiff had ridden upon said car, the same being propelled by hand from the station to said coal mine.

Ninth. That, as plaintiff has since been informed and believes push-cars designed and furnished to be used as above described, when they are to be used upon steep grades, are usually furnished with brakes, and that the grade upon the branch aforesaid was steep and heavy.

Tenth. That on the nineteenth of January, 1880, the foreman above named received a telegraphic order from the defendant company to take the carpenters so at work under him, being three in number besides plaintiff, and...