Miller v. Union Pac. Ry. Co.

• Citation: 17 F. 67
• Parties: MILLER v. UNION PACIFIC RY. CO. [1]
• Decision Date: 01 June 1883
• Court: U.S. District Court — District of Colorado

17 F. 67

MILLER v. UNION PACIFIC RY. CO. ^[1]

United States Circuit Court, D. Colorado.

June, 1883

McCRARY J., (charging jury.)

The plaintiff in his complaint avers that he has suffered personal injury by reason of the negligence of the Kansas Pacific Railroad Company, and that the defendant is liable therefor. That the plaintiff was injured while in the employ of said Kansas Pacific Railroad Company, substantially as alleged, is not disputed; but the defendant interposes three separate defenses, which it is your duty to consider. These are-- First, that the Kansas Pacific Railroad Company was not guilty of negligence as charged; second, that the plaintiff was guilty of negligence which contributed to his injury third, that if there was any negligence other than that of the plaintiff, it was the negligence of his fellow-servants engaged in the same common service with him, for which the company is not liable.

If you find from the evidence that either of these defenses has been sustained, you will find for the defendant. If you find that neither of them has been sustained, and that plaintiff has suffered injury without negligence on his part, and by reason of the negligence of said Kansas Pacific Railroad Company, then you will find for the plaintiff.

You may give your attention in the first place to the question whether the company was guilty of negligence. Negligence is the failure to use ordinary care; that is to say, such care as a person of common prudence would exercise under the circumstances. In the present case the question may be stated thus: Did the Kansas Pacific Railroad Company fail to discharge any duty it owed to the plaintiff?

It is contended on behalf of the plaintiff that the company failed to discharge its duty towards the plaintiff in two particulars, to-wit: First, that it failed to furnish him a safe means of transportation from the coal mine to the station, when he was required by its order to go from the former to the latter place; and, second, that by its agent McGrath, who was placed in a position of authority over him it ordered him into a position of unusual peril, by reason of which he was injured.

As to the first of these particulars, it is to be observed that, to sustain it, the plaintiff is required to prove to the satisfaction of the jury that the push car, upon which the plaintiff was riding at the time of the accident, was furnished by the company to be used for the transportation of employes from place to place upon the line. There is no evidence tending to show that the push car was originally furnished for this purpose. It is clear that if the plaintiff can recover at all, it is not upon the ground that the push car was constructed and placed upon the road for the purpose of being used to transport employes, and was not furnished with brakes, so as to be safely used for that purpose. As the cars were not originally intended to be used for his purpose, but to carry material only, and to be propelled by pushing, it was not negligent in the company to omit to provide brakes or other means of retarding their movement. Whether the company, by permitting the employes to use push cars for the purpose in question, and by its order to McGrath, to be hereafter referred to, has so far consented to such use as to be bound, is a question for you to consider, under the evidence and instructions of the court, which will be presently given you.

Between a railway company and its employes there exists the relation known in law as that of master and servant. When the servant enters into this relation he assumes all the risks ordinarily incident to the duty he undertakes to perform, and on the other hand the master (the railroad company) binds itself not to expose him to any extraordinary risks, or such as do not ordinarily belong to the employment. In accordance with this rule the law is that if the master, or another servant standing towards the servant injured in the relation of a superior or vice-principal, orders the latter into a situation of greater danger than in the ordinary course of his duty he would have incurred, and he obeys, and is thereby injured, the master is liable, unless the danger is so apparent that to obey would be an act of recklessness. A servant may obey orders...