Bennett v. N. Pac. R. Co.

• Decision Date: 27 July 1891
• Citation: 2 N.D. 112,49 N.W. 408
• Parties: Bennett v. Northern Pac. R. Co.
• Court: North Dakota Supreme Court

2 N.D. 112

49 N.W. 408

Bennett

v.Northern Pac. R. Co.

Supreme Court of North Dakota.

July 27, 1891.

Syllabus by the Court.

1. Plaintiff was injured while coupling an engine to a car because there was not sufficient space for his body between them. The draw-bars of the engine and of the car were unusually short, leaving a space of only about 10 inches between the end of the car and of the engine when the draw-bars came together, whereas the usual space is from 24 to 30 inches. Held sufficient to justify a verdict that defendant's negligence was one of the proximate causes of the injury. It appearing that plaintiff was injured in consequence of his failure to obey the rule of defendant that he must examine so as to know the kind and condition of the coupling apparatus, the rule giving him sufficient time to make such examination in all cases, held, that he could not recover.

2. Exclamations and expressions of present pain may be proved by any one who hears them, although made subsequently to the injury.

Appeal from district court, Stutsman county; Roderick Rose, Judge.W. F. Ball and John S. Watson, for appellant. S. L. Glaspell, for respondent.

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., (N. Y.) 22 N. E. Rep. 397; Gottlieb v. Railroad Co., 100 N. Y. 462, 3 N. E. Rep. 344; Railroad Co. v. Keenan, (Tex.) 14 S. W. Rep. 668;Bomar v. Railroad Co., (La.) 8 South. Rep. 478;Fay v. Railroad Co., (Minn.) 15 N. W. Rep. 241;O'Neil v. Railroad Co., 9 Fed. Rep. 337; Railroad Co. v. Barber, 44 Amer. & Eng. R. Cas. 523; Gutridge v. Railroad Co., 94 Mo. 468, 7 S. W. Rep. 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 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, 116 U. S. 642, 6 Sup. Ct. Rep. 590. 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 Sup. Ct. Rep. 590; Railroad Co. v. Keenan, (Tex.) 14 S. W. Rep. 668;Fay v. Railroad Co., 30 Minn. 231, 15 N. W. Rep. 241;Condon v. Railroad Co., 78 Mo. 567;Bushby v. Railroad Co., 107 N. Y. 374, 14 N. E. Rep. 407; Ell v. Railroad Co., (N. D.) 48 N. W. Rep. 222. When plaintiff stepped upon the footboard of the engine, it appears to have been a short distance from the car, and was backing down towards it slowly. Plaintiff stood upon that portion of the foot-board which was on the short side of the curve of the switch. On the other side, standing also on the foot-board, was the foreman of the switching crew. He guided the link into the opening, while plaintiff reached over to the flat-car to pick up a pin lying there, for the purpose of using this pin to complete the coupling. While in this position he was squeezed between the locomotive and the car, and injured, because, as the evidence demonstrated, there was too little space between them, owing to the undue shortness of the draw-bars both of the car and of the engine. He rests his right to indemnity upon this conduct of defendant in permitting a car with so short a draw-bar to be placed upon its track for use, and in augmenting the danger by bringing it into connection with an engine whose draw-bar was likewise, as appears from some of the evidence, much shorter than the draw-bars in ordinary use. Each of these draw-bars was, according to some of the evidence, so much shorter than those in common use that we are inclined to the view that the jury were justified in holding the defendant negligent on this account. Nor can it be said that the risk attending the use of such short draw-bars-particularly their use in connection with each other-was one of the ordinary risks of the employment, in the usual sense of that phrase. The evidence discloses that they were so short that when their ends came together there was only about 10 inches between the end of the car and of the locomotive, whereas the usual space, according to the evidence, is from about 24 to 30 inches. To so diminish this usual standing room that an employe is almost sure to be caught when in the discharge of his duty between a heavy standing car and an engine whose momentum, because of its weight, is tremendous, however slow its speed, would seem to be some evidence of negligence. If the space is too narrow for the body, serious injury is almost inevitable in case the servant is caught. There is respectable authority for the proposition that these facts warrant a finding of negligence. Railroad Co. v. Fredericks, 71 Ill. 294;Greenleaf v. Railroad Co., 29 Iowa, 14;Belair v. Railroad Co., 43 Iowa, 662;Crutchfield v. Railroad Co., 78 N. C. 300; Railroad Co. v. Callbreath, (Tex.) 1 S. W. Rep. 622.

Assuming that the jury were justified in finding the defendant guilty of negligence, it remains to be considered whether the plaintiff was not guilty of contributory negligence as a matter of law. The question arises not under ordinary circumstances. The defendant appears expressly to have imposed upon plaintiff duties in addition to those which the law would imply from an ordinary contract of employment of a switchman. At the time the plaintiff entered into the service of the defendant, the latter presented to plaintiff for signature certain regulations, and plaintiff, in answer to the question printed thereon, “Have you read and do you understand the following extract from the book of rules of the Northern Pacific Railroad Company?” replied in his own handwriting: “I have read and understand them.” So far as they are here material, these rules are as follows: “Great care must be exercised by all persons when coupling cars. Inasmuch as the coupling apparatus of cars and engines cannot be uniform in style, size, or strength, and is liable to be broken, and as from various causes it is dangerous to expose between the same the hands, arms, or persons of those engaged in coupling, all employes are enjoined before coupling cars or engines to examine so as to know the kind and condition of the draw-heads, draw-bars, links, and coupling apparatus, and are prohibited from placing in the train any car with a defective coupling until they have first reported its defective condition to the yard-master or conductor. Sufficient time is allowed, and may be taken by employes, in all cases to make the examination required.” Our first concern is to ascertain the true scope of this regulation. It will hardly be claimed that it was the purpose of defendant to impose upon the plaintiff all the duties of a car inspector, so far as the proper discharge of such duties were essential to the protection of the plaintiff. Such an interpretation would in effect exempt the defendant from liability for its own negligence, however gross. The same facts which would convict the defendant of carelessness would, under such a view of the rule, likewise convict the plaintiff of contributory negligence in every instance. The employer would thus save itself from liability, although negligent in the discharge of the duties of a master. It is an elementary rule of construction that the courts shrink from so interpreting the language employed by a common carrier as to exempt it from the consequences of its own negligence. No such interpretation will be adopted, unless by the use of the word “negligence,” or by other explicit language, the court is driven to such view. Then the provision so exempting from negligence is often struck down as opposed to public policy. (Whether the doctrine relates to an employe as well as to the public it is not necessary to decide.) It would be unreasonable to give the rule this construction. It would not be practicable for one employed in coupling cars to devote the same amount of time to and exercise the same degree of care in the inspection of the apparatus employed in the coupling of cars, and of such parts of the car as are immediately connected therewith, as a car inspector must. To exempt the company from liability, something more than a short examination must be made by the car inspector. There may be obscure defects which the exercise of due care renders it imperative he should discover, and for his failure to discover and remedy which the company would be responsible; and yet for the master to insist that a trainman or a switchman...