Chicago, Burlington & Quincy Railroad Company v. Curtis
| Decision Date | 05 May 1897 |
| Docket Number | 7103 |
| Parties | CHICAGO, BURLINGTON & QUINCY RAILROAD COMPANY v. WILLIAM H. CURTIS |
| Court | Nebraska Supreme Court |
ERROR from the district court of Jefferson county. Tried below before BUSH, J. Reversed.
REVERSED AND REMANDED.
J. W Deweese, for plaintiff in error:
A foreign freight car tendered for shipment is personal property, and a railroad company is required to receive it and haul it the same as any other freight. (Peoria & P U. R. Co. v. Chicago, R. I. & P. R. Co., 109 Ill. 137.)
The brakeman assumed the risk of injury from coupling cars coming from another road and having coupling apparatus different from the ordinary car. It was the duty of the company to receive the car. Negligence of a carrier cannot be predicated upon the performance of a duty required by law. (Thomas v. Missouri P. R. Co., 53 Am. & Eng. R. Cas. [Mo.], 146; Michigan C. R. Co. v. Smithson, 45 Mich. 214; Baldwin v. Chicago, R. I. & P. R. Co., 50 Iowa 680; East Tennessee, V. & G. R. Co. v. Turvaville, 12 So Rep. [Ala.], 64; Kehler v. Schwenk, 22 A. [Pa.], 911; Titus v. Bradford, B. & K. R. Co., 20 A. [Pa.], 517; Toledo, W. & W. R. Co. v. Black, 88 Ill. 114; Kohn v. McNulta, 147 U.S. 240; Indianapolis, B. & W. R. Co. v. Flanigan, 77 Ill. 365; Hathaway v. Michigan C. R. Co., 51 Mich. 253; Atchison, T. & S. F. R. Co. v. Meyers, 76 F. 443; Tuttle v. Detroit, G. H. & M. R. Co., 122 U.S. 189; Ladd v. New Bedford R. Co., 119 Mass. 412; Northern P. R. Co. v. Blake, 63 F. 45; Kelly v. Wisconsin C. R. Co., 23 N.W. [Wis.], 890; Darracutts v. Chesapeake & O. R. Co., 2 S.E. [Va.], 513; Menominee River S. & D. Co. v. Milwaukee & N. R. Co., 65 N.W. [Wis.], 176; Pittsburgh & L. E. R. Co. v. Henley, 29 N.E. [O.], 575; Norfolk & W. R. Co. v. Brown, 22 S.E. [Va.], 496.)
It was not the carrier's duty to warn an experienced employe. (Yeager v. Burlington, C. R. & N. Y. R. Co., 61 N.W. [Ia.], 215; Secord v. Chicago & M. L. S. R. Co., 65 N.W. [Mich.], 550.)
The contract under which the brakeman accepted benefits from the Burlington Voluntary Relief Department and released the railroad company from liability for damages is valid and binding, and prevents him from recovering in this action. (Chicago, B. & Q. R. Co. v. Wymore, 40 Neb. 645; Burlington Voluntary Relief Department v. White, 41 Neb. 547; Shaver v. Pennsylvania R. Co., 71 F. 931; Johnson v. Philadelphia & R. R. Co., 29 A. [Pa.], 854; Graft v. Baltimore & O. R. Co., 8 A. [Pa.], 206; Spitze v. Baltimore & O. R. Co., 23 A. [Md.], 307; Owens v. Baltimore & O. R. Co., 35 F. 718; Black v. Baltimore & O. R. Co., 36 F. 655; Fuller v. Baltimore & O. E. R. Ass'n, 10 A. [Md.], 237; Kinney v. Baltimore & O. E. R. Ass'n, 53 Am. & Eng. R. Cas. [W. Va.], 34; Donald v. Chicago, B. & Q. R. Co., 61 N.W. [Ia.], 971; Leas v. Pacific R. Co., 37 N.E. [Ind.], 423.)
A. W. Agee, also for plaintiff in error.
W. H. Woodward, contra:
A brakeman in coupling cars has a right to assume that they are in good and safe condition, and it is not contributory negligence for him to run in between the cars without stopping to examine whether the drawheads are proper or not. (King v. Ohio R. R. Co., 8 Am. & Eng. R. Cas. [U.S. C. C. Dist. of Ind.], 119.)
It is negligence to receive a dangerous foreign car, though sound in construction. (Gottlieb v. New York, L. E. & W. R. Co., 24 Am. & Eng. R. Cas. [N. Y.], 422; Mackin v. Boston & A. R. Co., 135 Mass. 201.)
A railroad company cannot escape responsibility from defective carriages by borrowing them from another. (
A brakeman who knows nothing of the danger of coupling cars having double deadwoods, and who has but a few seconds to observe and act, is not negligent, as a matter of law, in not noticing that double deadwoods would meet and injure him. (Reynolds v. Boston & M. R. Co., 53 Am. & Eng. R. Cas. [Vt.], 178.)
A railroad company is liable for injuries to a brakeman crushed between cars, unprovided with bumpers, which he was suddenly called upon to couple without previous information as to their condition. (Mason v. Richmond & D. R. Co., 53 Am. & Eng. R. Cas. [N. Car.], 183; O'Hare v. Chicago & A. R. Co., 95 Mo. 662.)
A master is required to exercise ordinary care to make the service reasonably safe. (Abel v. President D. & H. C. Co., 128 N.Y. 662; McGovern v. Central V. R. Co., 123 N.Y. 280; Dorsey v. Phillips & C. C. Co., 42 Wis. 597.)
A danger unknown to the servant, arising from a breach of duty of the master, is actionable where injury results, and such danger is not a risk of employment. (King v. Ohio R. Co., 14 F. 277; Gibson v. Pacific R. Co., 46 Mo. 170; Huhn v. Missouri P. R. Co., 92 Mo. 440; Baltimore & O. C. R. Co. v. Rowan, 104 Ind. 88; Washington & G. R. Co. v. McDade, 135 U.S. 554; Goodrich v. New York C. & H. R. R. Co., 116 N.Y. 398; Louisville, N. A. & C. R. Co. v. Frawley, 110 Ind. 18; Coates v. Boston & M. R. Co., 153 Mass. 297; Thompson v. Chicago, M. & St. P. R. Co., 14 F. 564; Wheeler v. Wason Mfg. Co., 135 Mass. 294; Smith v. Oxford I. Co., 42 N.J.L. 467; Baltimore & O. R. Co. v. Baugh, 8 Am. R. R. & Cor. Cas. [U.S.], 198.)
A common carrier cannot, by contract or otherwise, limit its liability for negligence.
The opinion contains a statement of the case.
The defendant in error instituted this action in the district court of Jefferson county to recover damages alleged to have resulted from injuries received by him in an attempt to couple together two freight cars of a company other than the plaintiff in error, which were being, or to be, transported over the line of road or a portion thereof of the plaintiff in error, and which had on them what were known as double deadwoods or buffers. These double deadwoods were of pieces of timber faced with iron, attached on each side of the draw-bar, and extended out from the car as far as the draw-bar, so that they were flush with the end or head of the draw-bar into which the coupling-link was to be inserted in making the coupling. The defendant in error's right hand was caught between the deadwoods and so bruised and mashed that amputation thereof was thought necessary and was performed. Defendant in error was awarded a verdict and judgment in the district court, and the company has prosecuted error proceedings to this court.
The main allegations of the petition filed for defendant in error were, in substance, that cars equipped with double deadwoods were so difficult to couple, and the act of coupling them so dangerous to persons undertaking it, that it was negligence for the company to receive them for transportation on its road; that having received them, it was the duty of the company, when it called on the defendant in error to couple them, to notify him of the peculiarity of the construction of the cars and direct his attention to the double deadwoods that the failure to give such notice was actionable negligence; also that it was the duty of the company to furnish him with a coupling-knife, in use for making couplings of cars having double deadwoods, with which to make the coupling; that this was not done, which was negligence on the part of the company, which rendered it liable for the consequent injuries to defendant in error. The double deadwoods were referred to and described as follows: "These two freight cars aforesaid had attached to them, where the coupling was made, what is known by railroad men as
The answer of the company admitted that defendant in error was injured at the time, place, and in the manner alleged, but of the extent of the injuries alleged a want of knowledge, and demanded proof, and joined issues as to all the other material facts pleaded in the petition. It was affirmatively stated in the answer, in substance, that cars equipped with double deadwoods were reasonably safe, and had been in use for many years on many lines of railroad engaged in interstate transportation; that the two cars which the defendant in error attempted to couple together were tendered to and received by the plaintiff in error in the regular course of the business of interstate shipments, and that it was compelled to accept and transport them over its line of road; "that the situation and use of the double deadwoods on these cars was plain to be seen, and the defendant alleges that whatever injury the plaintiff sustained at said time and place said injury was caused by his own carelessness and negligence and without any fault of this defendant." As a further defense it was stated that there had been organized and was in existence what was called and known as the "Burlington Voluntary Relief Department," of which the defendant in error was a member, and on account of such membership was entitled to certain benefits or payments, in the way of support and maintenance while injured or sick at any time during his employment by plaintiff in error; that the company had guarantied the funds necessary, if any, over and above...
To continue reading
Request your trial