O'Rorke v. Union Pac. Ry. Co.

• Decision Date: 01 January 1884
• Citation: 22 F. 189
• Parties: O'RORKE v. UNION PAC. RY. CO.
• Court: U.S. District Court — District of Colorado

22 F. 189

O'RORKE v. UNION PAC. RY. CO.

United States Circuit Court, D. Colorado.

1884

Markham Patterson & Thomas, for plaintiff.

Teller & Orahood, for defendant.

BREWER J.

In No 1,176, O'Rorke v. Union Pacific Ry. Co., a motion was made for a new trial. It was an action for personal damages and a verdict was found for the plaintiff. The substantial facts are these: This plaintiff was a car repairer, engaged in repairing cars along the line of the defendant's road. On the day of the accident he went to the station at Malta, I believe, and found there three cars standing on a side track with a freight train on the main line. The conductor of the freight train told him that the rear car of the three side-tracked cars needed repairing, and that he should wait there about 20 minutes, which would be time enough to do the work.

He went under the car to repair it, and while there parties in charge of the freight train switched a car onto the side track, which started the other cars on the track, and they pushed the car under which he was at work, moving it some few feet and injuring him. He had no red flag out with which to signal to the engineer, and no assistant to notify parties moving the train that he was at work under the car; and the engineer moving the train did not know there was any one under the car. He had no reason to suppose that any one was under it, and switched off his freight car onto the side track without any knowledge or reason to believe there was any danger in so doing.

Indeed, so far as the action of the engineer is concerned, no negligence can be affirmed in his conduct. The complaint is that the railroad company was negligent in not furnishing to one engaged in that business, and necessarily compelled to go under cars and liable to be there injured, a red flag which he might station out as a signal, or furnish him an assistant to give notice of his position; and that the railroad company was negligent in not so doing I have no question. Whenever they call upon an employe to go into such a position as that, I think it is their duty to provide him with the ordinary means of protection, which, we are informed by the testimony, is a red flag. It cannot be expected that engineer in switching cars can send a man forward to see whether or not some one is under any car; and the red flag, being the ordinary signal of danger, should have been furnished to this man. But the troublesome question lies back of that. This plaintiff was an old railroad man, fully aware of the dangers of such work as he was then engaged upon. He had been employed on this road in such work for seven or eight months, and was in the habit of going under cars under just such circumstances. He had no flag, and had asked for none. Now, the railroad company insists that he waives his right to recover for any injury received, in consequence of that fact. This doctrine of waiver, upon which the company relies, is a doctrine which has been developed within the last few years. It has been carried by some courts to a dangerous extent-- one which I think cannot be finally sustained.

It has been said, and I think there is force in it, that there is really no such thing as a separate and distinct defense of waiver, and that what is called waiver is simply one...