49 N.W. 408 (N.D. 1891), Bennett v. Northern Pacific Railroad Co.

Citation:49 N.W. 408, 2 N.D. 112
Opinion Judge:CORLISS, C. J.
Party Name:GEORGE A. BENNETT, Plaintiff and Respondent, v. NORTHERN PACIFIC RAILROAD COMPANY, Defendant and Appellant
Attorney:W. F. Ball and John S. Watson, for appellant. S. L. Glaspell for respondent:
Case Date:July 27, 1891
Court:Supreme Court of North Dakota
 
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Page 408

49 N.W. 408 (N.D. 1891)

2 N.D. 112

GEORGE A. BENNETT, Plaintiff and Respondent,

v.

NORTHERN PACIFIC RAILROAD COMPANY, Defendant and Appellant

Supreme Court of North Dakota

July 27, 1891

APPEAL from district court, Stutsman county; Hon. RODERICK ROSE, Judge.

Action to recover damages for a personal injury sustained by plaintiff while in defendant's employ. Judgment for plaintiff. Defendant appeals. Reversed and new trial ordered.

Reversed and new trial ordered.

W. F. Ball and John S. Watson, for appellant.

The principle is well settled that no negligence can be inferred from the fact that a railroad track is constructed on a curve at the place of an accident to a servant. And this is true, although it appears that the accident would not have occurred had the track been straight. Tuttle v. Railroad Co., 122 U.S. 189. The wife of the plaintiff was asked the following question: "Have you ever noticed any exclamations or expressions of pain at any time," referring to the physical condition of the plaintiff. Evidence of this character is admissible only when it relates to expressions and exclamations made at or about the time of the injury. Reed v. Railroad Co., 45 N.Y. 574; Railroad Co. v. Kuntley, 38 Mich. 537; Wharton on Evidence, § 268 and cases cited; Laughlin v. Railroad Co., 44 N.W. 1049. An employe cannot judge of the reasonableness of the company's rules. Walsey v. Railroad Co., 33 Ohio St. 227; Hulet v. Railroad Co., 67 Mo. 239. It was undoubtedly contributory negligence on the part of the plaintiff to place himself in such a position as to incur the danger and suffer the injury complained of. Tuttle v. Railroad Co., 122 U.S. 189; Railroad Co. v. Lunde, 11 Am. & Eng. R. R. Cases, 188. The plaintiff entered upon the service of defendant under a written contract and he cannot escape strict compliance with the terms to which he there consented. Railroad Co. v. Whitcomb, 31 Am. & Eng. R. R. Cases, 149; Darractus v. Railroad Co., 2 S.E. 511; Walsey v. Railroad Co., 33 Ohio St. 227; Railroad Co. v. Black, 88 Ill. 112. It was not negligence to receive the Union Tank Line car because it had a shorter dead wood and draft iron than those in use upon defendant's cars. Whitcomb v. Railroad Co., 12 Am. & Eng. R. R. Cases 214; Kelley v. Railroad Co., 21 Id 633; Railroad Co. v. Black, 88 Ill. 112; Smith v. Potter, 46 Mich. 258, 2 Am. & Eng. R. R. Cases 140. When an instruction is based upon a state of facts not warranted by the evidence, the manifest tendency of which is, from the special features of the case, to lead the jury to infer the existence of such facts and thereby take an erroneous view of the case, it is ground for reversal. Willis v. Railroad Co., 17 Am. & Eng. R. R. Cases 542; Bank v. Eldred, 9 Wall. 554; St. Louis v. Risley, 10 Wall. 91; U.S. v. Breitling, 20 How. 254; Jones v. Randolph, 14 Otto 108; Boardman v. Reed, 6 Pet. 328; Insurance Co. v. Baring, 20 Wall. 158; Miller v. Railroad Co., 41 N.W. 28. An instruction to the jury which does not arise out of facts of the case, is inapplicable to it and is erroneoes if calculated to mislead and confuse them. Railroad Co. v. Robbins, 2 Black 417; Bank v. Eland, 9 Wall. 554; Thompson, Charge to Juries, §§ 62, 63.

S. L. Glaspell for respondent:

Whether the plaintiff should have known and appreciated the danger was a question of fact properly submitted to the jury. Hugerford v. Railroad Co., 41 Am. & Eng. R. R. Cases 269; Lawless v. Railroad Co., 18 Id 96; Greenleaf v. Railroad Co., 29 Iowa 14; Goodrich v. Railroad Co., 22 N.E. 397; Kane v. Railroad Co., 32 U.S. 339 (Co-Op. Ed.); Thompson on Negligence, p. 1015-1239; Williams v. Railroad Co., 3 Dak. 168; Dorsey v. Phillips, 42 Wis. 583; Mares v. Railroad Co., 3 Dak. 336, on appeal 31 U.S. 296, (Co-Op. Ed.); Herbert v. Railroad Co., 3 Dak. 38, on appeal 29 U.S. 755 (Co-Op. Ed.) Defendant objects to plaintiff's wife testifying that plaintiff "woke up more than once in the night groaning," because it was hearsay evidence. The weight of authority is in favor of admitting such testimony. Matteson v. Railroad Co., 35 N.Y. 487; Perkin v. Railroad Co., 44 N.H. 223; Houston, etc., v. Shafer, 6 Am. & Eng. R. R. Cases 421; Railroad Co. v. Newell, 104 Ind. 264; Yeatman v. Hart, 6 Humph. (Tenn.) 374; Eckles v. Bates, 26 Ala. 655; Kent v. Lincoln, 32 Vt. 592; State v. Gedicke, 43 N. J. Law 86; Note to 28 Am. & Eng. R. R. Cases 563. The duty of inspection applies to foreign cars as well as to those owned by the railroad company, and the use of such cars with defective coupling apparatus is negligence. Sherman & Redfield on Negligence, § 196; Gottlieb v. Railroad Co., 100 N.Y. 462; O'Neil v. Railroad Co., 9 F. 337; Fay v. Railroad Co., 11 Am. & Eng. R. R. Cases 193; Goodrich v. Railroad Co., 41 Id 259; Bomar v. Railroad Co., 88 So. Rep. 478; Railroad Co. v. Barber, 44 Am. & Eng. R. R. Cases 523. Plaintiff was only bound to raise by his proof a reasonable presumption of negligence. If the facts proved made it probable that the defendant neglected its duty, it is for the jury to decide. Greenleaf v. Railroad Co., 29 Iowa 14-46; Benzing v. Stenway, 101 N.Y. 553; Morton v. Railroad Co., 46 N.W. 111.

OPINION

[2 N.D. 115] CORLISS, C. J.

The circumstances under which plaintiff was injured we think warranted the jury in finding that the defendant's negligence was one of the proximate causes of the damage which the plaintiff suffered. He was an employe of the defendant, acting as switchman. The first important fact in the history of the accident was the stepping of the plaintiff upon the foot-board of a switch engine to ride down upon it to a flat-car standing upon a curved switch, for the purpose of aiding in coupling the engine to the car in order to transfer it to another track. The car did not belong to defendant, but was owned by the Union Tank Line Company. This fact is of no moment, however, as the defendant was bound to inspect this foreign car the same as one of its own cars. Goodrich v. Railroad Co., 116 N.Y. 398, 41 Am. & Eng. R. R. Cases, 259, 22 N.E. 397; Gottlieb v. Railroad Co., 100 N.Y. 462, 24 Am. & Eng. R. R. Cases 421, 3 N.E. 344; Railroad Co. v. Keenan, 78 Tex. 294, 14 S.W. 668; Bomar v. Railroad Co., 42 La.Ann. 983, 8 So. 478; Fay v. Railroad Co., 30 Minn. 231, 11 Am. & Eng. R. R. Cases 193, 15 N.W. 241; O'Neil v. Railroad Co., 9 F. 337; Railroad Co. v. Barber, 44 Kan. 612, 44 Am. & Eng. R. R. Cases 523; Gutridge v. Railroad Co., 94 Mo. 468, 7 S.W. 476. It was defendant's duty to make this inspection before incorporating the car into one of its trains. More than sufficient time had elapsed since receiving the car to enable it to perform this duty, as the accident occurred in Jamestown, in this state, a considerable distance beyond the point where the car must have first come into its possession. It had been long enough in its custody to be carried to its destination and unloaded, as it was standing empty upon the switch at the time plaintiff was injured. There is no proof that the car was ever inspected. The defect was of such a nature [2 N.D. 116] that the exercise of reasonable care in making an inspection must have disclosed the defect. Therefore, whether the car was or was not inspected, there was sufficient to justify a verdict that the defendant had been careless in the discharge of its duty to use reasonable care to furnish its employes with safe appliances of every kind, and keep them in safe condition. Railroad Co. v. Herbert, 3 Dak, 38, 8 Am. & Eng. R. R. Cases 85, 116 U.S. 642, 24 Am. & Eng. R. R. Cases 407, 6 S.Ct. 590, 29 L.Ed. 755. This is one of the master's duties, and the servant upon whom the master devolves its performance represents the master in that respect, and is not in the discharge thereof a fellow servant of the employe injured. Railroad Co. v. Herbert, 116 U.S. 642, 6 S.Ct. 590, 29 L.Ed. 755; Railroad Co. v. Keenan, 78 Tex. 294, 14 S.W. 668; Fay v. Railroad Co., 39 Minn. 231, 11 Am. & Eng. R. R. Cases 193, 15 N.W. 241; Condon v. Railroad Co., 78 Mo. 567; Bushby v. Railroad Co., 107 N.Y. 374, 14 N.E. 407; Ell v. Railroad Co., 1 N.D. 336, 48 N.W. 222. When plaintiff stepped upon the foot-board of the engine it appears to have been a short distance from the car, and was backing down towards it slowly. Plaintiff stood...

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