126 F. 194 (E.D.Ky. 1903), Dishon v. Cincinnati, N.O. & T.P. Ry. Co.

Citation:126 F. 194
Party Name:DISHON v. CINCINNATI, N.O. & T.P. RY. CO.
Case Date:November 20, 1903
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 194

126 F. 194 (E.D.Ky. 1903)




United States Circuit Court, E.D. Kentucky.

November 20, 1903

Robert Harding and Rawlins & Voris, for plaintiff.

Galvin & Galvin, for defendant.

COCHRAN, District Judge.

On the trial of this action I sustained a motion by defendant at the close of all the evidence to instruct the jury to find for defendant. Plaintiff has made a motion for a new trial on the ground that I erred in so instructing the jury. The question involved is an interesting one, and deserves and has received at my hands careful consideration.

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The deceased, John Dishon, was in the employ of defendant as a section hand, and worked on that section of the road which includes High Bridge Station, under a section boss. That station is located on the north side of the Kentucky river, at the point where defendant's road crosses said river by what is known as High Bridge, and on the west side of the railroad. The main track is located next to the station, and on the east side thereof there is at least one, and perhaps two, tracks, which, or the easternmost of which two tracks, if there are two, is a side track used to station cars on when not in transportation. On the east side of the railroad is a section house which at the time of the injury complained of was occupied by said section boss. The petition alleges that it was leased or furnished to him by defendant; that defendant suffered and permitted him to use and occupy it and furnish food and lodging there to its employes; and that it suffered, permitted, and licensed its employees boarding there to go to and from said house across its railroad in front of said house. The evidence, in so far as it related to this matter, bore out this allegation. The evidence introduced by plaintiff tended to show that when cars were stationed on said side track an opening was maintained between them in front of the gate leading to the front door of said section house in order that employees going to and from the house might pass through it. The evidence introduced by defendant tended to show that no such opening was intentionally maintained; that if any such opening was ever there it was so because it so happened; and that employes were in the habit of getting to and from the house when cars were on the track by going around the ends of them, between the openings at other points as well as in front of the gate, and at times by crawling under the cars.

The deceased boarded with said section boss at said section house, and on the 30th day of July, 1901, after he had completed his day's work and eaten his supper, he left the house in company with two other hands to go over to the station, on the opposite side of the track, to pass away the time until bedtime. As they did so there was an opening between the cars on said side track in front of, or a short distance south of in front of, said gate. This opening had been there as decedent came in from his work, and he had passed through it to get to the house. One of his comrades passed through the opening safely as they were going over to the station. Decedent then attempted to do so, and whilst he was making the attempt the opening was closed by the cars to the north of the opening being shoved back by an engine manipulating the cars on the track. The effect of this was to crush and kill the decedent. It was on account of the injury thus caused that this action was brought. The negligence charged was in backing said cars against said decedent. The defendant denied negligence in this particular, and pleaded contributory negligence on decedent's part.

The only ground for claiming that defendant had been negligent towards decedent in the backing of said cars was in those in charge of the movements of the engine not giving notice of the fact that the backward movement was about to be made before and at the time

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it was being made. Defendant's counsel contended in support of the motion for the peremptory instruction that the burden was upon plaintiff to show absence of such notice, and that there was no evidence tending to show that such notice was given. Their argument in support of this contention was quite plausible. And it seems certain that plaintiff's counsel conceived that his case was made out by proving the maintenance of said opening, the right of decedent to use it, and the fact that in using it he was crushed and killed by its being closed in the manner stated. No effort was made to show that no notice was given, and if there was evidence tending to show that it was not given it consisted of a presumption that decedent would not have made the attempt to pass through the opening had any notice been given, or crept in undesignedly when plaintiff's evidence was being introduced, or was unnecessarily permitted to get in through defendant's evidence.

Possibly also the peremptory instruction could have been based upon the ground that the evidence showed beyond question that decedent had been guilty of contributory negligence. There can be no doubt but that decedent, before attempting to pass through the opening, made no effort to see whether there was a possibility of the opening being closed whilst he was in the act of passing through it, but made the attempt acting upon the idea that there was no danger. There was also evidence to the effect that just before the house was left one of the persons there present heard the noise of a moving engine. The only possible ground for holding that decedent was not guilty of contributory negligence is that there was an obstruction, to wit, a pile of lumber, near the track on the east side north of the gate leading to the section house, and between it and the engine, so that if decedent had looked in that direction before attempting to pass through the opening to see if there was danger he could not have seen the engine. It may be urged, however, by defendant that this lumber pile did not prevent the engine being seen if an effort had been made to see whether there was danger from that direction, on the ground that it was not high enough to hide the smokestack of the engine. It was good daylight, and otherwise there was nothing to prevent the engine being seen.

But I did not base the peremptory instruction on either one of these two grounds. I based it upon the ground that the servants in charge of the engine were fellow servants of the decedent, and therefore no recovery could be had; and, as I think this point was well taken, it is unnecessary to pass upon the other two grounds.

Plaintiff's counsel concede that if the decedent had been run into by the engine in charge of the same servants whilst he was at work on the track they would have been his fellow servants, and no recovery could have been had. That such is the law is well settled by the decisions of the Supreme Court of the United States, which are binding upon me. In the case of Northern P. Ry. Co. v. Hambly, 154 U.S. 349, 14 Sup.Ct. 983, 38 L.Ed. 1009, it was held that the conductor and engineer upon a passenger train were the fellow servants of a section hand at work upon the track.

The ground upon which plaintiff's counsel contend that the alleged

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negligent servants of defendant were not fellow servants of the decedent is that it was after working hours when the accident happened, and he was then off duty. Is such the value of this fact or circumstance? To answer this question correctly it is necessary that we mount the high ground of principle. That is the proper place from which all that is accidental or transitory should be viewed. The temporary should be estimated in the light of the eternal-- sub specie aeternitatis-- for the transactions of life are but acts in the drama of eternity. What, then, is the principle at the bottom of the fellow servant doctrine? Why is it that a master of two or more servants in the same employment is not liable for an injury to one caused by the pure negligence of another? It is because, there being no express provision to the contrary, it is an implied term of the contract of employment of said servants that they will assume the current risks of the employment other than that of the negligence of the master, of which the pure negligence of a co-servant is one. This is so laid down by Mr. Chief Justice Shaw in the case of Farwell v. Boston & Worcester R. Corp., 4 Metc.(Mass.) 49, 38 Am.Dec. 339, which according to Prof. Pollack in his work on Torts, is the 'fountain head' of all the later decisions on the subject. In the case of Railroad Co v. Fort, 17 Wall. 553, 21 L.Ed. 739, Mr. Justice Davis said:

'The employe in entering the service of the principal is presumed to take upon himself the risks incident to the undertaking, among which are to be counted the negligence of fellow servants.'

Prof. Pollack in his said work, p. 116 (Am.Ed.), thus expresses the matter:

'Strangers can hold the master liable for the negligence of a servant about his business. But in the case where the person injured is himself a servant in the same business he is not in the same position as the stranger. He has of his free will entered into the business and made it his own. He cannot say to the master: 'You shall so conduct your business as not to injure me by want of due care and caution therein;' for he has agreed with the master to serve in that business, and his claims on the master depend on the contract of service. Why should it be an implied term of that contract, not being an express one, that the master shall indemnify him against the negligence of a fellow servant or any other current risk? It is rather to be implied that he contracted with the risk before his eyes, and that the dangers of the service, taken all round, were considered in fixing the rate of payment...

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