128 F. 529 (8th Cir. 1904), 1,986, Gilbert v. Burlington, C. R. & N. Ry. Co.

Docket Nº:1,986.
Citation:128 F. 529
Party Name:GILBERT v. BURLINGTON, C. R. & N. RY. Co. et al.
Case Date:March 24, 1904
Court:United States Courts of Appeals, Court of Appeals for the Eighth Circuit

Page 529

128 F. 529 (8th Cir. 1904)

GILBERT

v.

BURLINGTON, C. R. & N. RY. Co. et al.

No. 1,986.

United States Court of Appeals, Eighth Circuit.

March 24, 1904

Syllabus by the Court

While the questions of contributory negligence and proximate cause are, like other questions of fact, ordinarily for the jury, they are for the court where there is no substantial conflict in the evidence, and the conclusions from it are such that all reasonable men must agree upon them.

The test of contributory negligence is whether or not the want of care directly contributes to the injury, not whether or not it is a more proximate cause of it than the negligence of the defendant. If it directly contributes to the injury, it is fatal to the plaintiff's recovery, although the negligence of the defendant may be the more proximate cause of it.

Where there is a comparatively safe and a more dangerous way of discharging a duty known to a servant, it is negligence for him to select the more dangerous method, and, if his selection directly contributes to his injury, it is fatal to his recovery therefor.

The act of March 2, 1893, c. 196, 27 Stat. 531 (3 U.S.Comp.St. 1901, p. 3174), which makes it the duty of common carriers to equip their cars engaged in interstate traffic with couplers which can be uncoupled 'without the necessity of men going between the ends of the cars,' imposes upon the employees the correlative duty of using these couplers when furnished, and of refraining from unnecessarily going between the ends of cars to uncouple them. A failure of a servant to discharge this duty, which directly contributes to his injury, is fatal to an action for damages on account of it.

One who voluntarily and unnecessarily exposes himself to an imminent known danger, and thereby directly contributes to his injury, cannot escape the fatal effect of his contributory negligence because the unknown negligence of the defendant, which concurred to produce the injury, made the danger greater than he supposed it to be.

A railroad company accustomed to keep its guard rails blocked permitted the block to disappear from one of them. A brakeman, in ignorance that the block had disappeared, after trying to couple two moving cars by means of a lever on his side of the train, failed to use or to try to use the lever on the other side of the train, which had been furnished for the same purpose, entered between the ends of the cars, uncoupled them without the use of the lever, caught his foot between the guard rail and the main rail, and was injured. Held, conceding, but not deciding that the company was negligent in permitting the guard rail to become unblocked, the plaintiff failed to exercise ordinary care; his failure directly contributed to his injury, and was fatal to his action for damages on account of it.

This is an action brought by Charles Gilbert, the plaintiff in error, against the Burlington, Cedar Rapids & Northern Railway Company and the Chicago,

Page 530

Rock Island & Pacific Railway Company to recover damages for a personal injury which he sustained, as he alleged, by reason of the negligence of the Burlington Company. The complaint stated a cause of action against that company, and contained an averment to the effect that the Rock Island Company had assumed the debts and liabilities of the former corporation. The answer denied the material allegations of the complaint, and alleged that the plaintiff's injury was caused by his own negligence. There was a trial to a jury, and at the close of the plaintiff's evidence the court instructed the jury to return a verdict for the defendants. This ruling and the judgment upon it are assailed by the writ of error. The facts established at the close of the testimony were these: The Burlington Company owned and operated a railroad upon which it had blocked the guard rails and frogs, but a few days before the plaintiff was injured, one of these blocks had disappeared from a guard rail in the yard at Iowa Falls, in the state of Iowa, where the plaintiff was at work for the company as head brakeman of a crew of men who were engaged in switching the cars and making up trains. Gilbert's two assistants in this crew had noticed that the blocking to the guard rail was gone, but Gilbert testified that he was not aware of that fact. A few moments after 6 o'clock in the afternoon of May 7, 1902, the plaintiff was engaged with his crew in uncoupling and kicking off upon another track the most southerly of a string of cars, which they were handling by means of an engine attached to the north end of it. The south car of this train was a Street stable car, and the next car north of it was a Northwestern car. Each of these cars was equipped with automatic couplers, the character and operation of which are described in this way in the testimony: 'The cars are coupled together by what are known as 'automatic couplers,' which consist of drawbars with knuckles, so called, upon the ends of them, which open and shut, and when shut and clasped together are held in place by means of a pin, and which may be uncoupled by the raising of the pin which cannot be pulled clear out, however, but raised a certain distance and held, and which, when the coupling apparatus is in order, may be raised and held by the manipulation of a lever upon the outside of the car, which is attached to a pin by means of a rod and chain. When the pin is raised and held in place, then by the movement of either car from the other the cars become uncoupled. ' The lever to pull the pin on the north end of the Street stable car was on the east side of the car. The lever to pull the pin on the south end of the Northwestern car was on the west side of the car. There was no defect in the couplers nor in the apparatus for pulling the pins. It was impossible to pull the pins when the string of cars was drawn tight so that there was no slack between them. or, as the witnesses expressed it, 'when the slack was tight.' Gilbert was on the east side of the train, giving signals and orders to his men. He signaled the engineer to kick off the Street stable car, and undertook to uncouple it. The train stopped. He seized the handle of the lever on his side of the train, and endeavored to pull the pin with it, but the slack was tight, and he could not do so. The train started south. He walked by the side of it, and endeavored several times to pull the pin by means of the lever and failed. He then stepped in and walked along between the cars, which were moving at the rate of about two or three miles an hour, and tried in vain to raise the pin on the Street stable car with his hands. Thereupon he turned away, but still remained facing the Street stable car more than the Northwestern car, seized the chain, and tried to raise the pin in the latter car, but could not do so. He then turned back to the Street stable car, shook the chain on its pin, pulled the pin up, the cars uncoupled, he caught his foot in the unblocked guard rail, and lost his leg. It was the custom of the brakemen, when they were unable to pull the pin with the lever on their side of the train, to step in between the cars and raise the pin with their hands without attempting to use the lever upon the other side of the train. The pins were at about the height of Gilbert's breast as he walked along between the cars. He testified that he did not try to operate the lever on the opposite side of the train; that one could get a leverage by its use, but that he did not know whether a man could use his strength to more advantage on the lever than he could directly on the pin or on the chain attached to it. He also testified at the trial that he did not find out what the trouble was with the levers and

Page 531

pins, but a written account of the accident, which he signed about a month after his injury, contains this statement: 'The second time I attempted to pull up this lever it worked all right, and I cut the car off. The slack mustn't have been out of the cars the first time I tried it. Sometimes they work hard when this is the case. Far as I know, the couplers were in good condition. They only worked hard, is all.'

Humphrey Barton (John E. Samuelson, on the brief), for plaintiff in error.

McNeil V. Seymour (Edward C. Stringer and Carroll Wright, on the brief), for defendants in error.

Before SANBORN, THAYER, and HOOK, Circuit Judges.

SANBORN, Circuit Judge, after stating the case as above, .

The case presents these two questions: Was there any substantial evidence that the Burlington Company was guilty of a failure to exercise ordinary care to keep its railroad in a reasonably safe condition? Was the evidence that the plaintiff was guilty of negligence which directly contributed to his injury so conclusive that all reasonable men in the exercise of an impartial judgment must draw that conclusion?

The only fact disclosed by the evidence which is claimed by counsel for the plaintiff in error to indicate negligence on the part of the railroad company is that it adopted the practice of keeping its frogs and guard rails blocked, and then permitted one of them to become unblocked without notice to the plaintiff. But it is a mooted question among the owners and operators of railroads whether the blocked or the unblocked frog and guard rail present the nearer approach to safety. Many are of the opinion that the blocked rail is less dangerous than the unblocked rail, and adopt the practice of blocking their guard rails. Many are of the opposite opinion, and leave their rails unblocked. Railway companies have and must exercise much judgment and discretion in determining the methods of construction and operation of railroads which they adopt, and there is a wide field here, where their decision of doubtful questions in the affirmative or in the negative cannot be held to disclose any want of ordinary care. In the matter under consideration they are charged...

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