Chicago Great Western Ry. Co. v. Crotty

Citation141 F. 913
Decision Date06 October 1905
Docket Number2,003.
PartiesCHICAGO GREAT WESTERN RY. CO. v. CROTTY.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

(Syllabus by the Court.)

While assumption of risk and contributory negligence rest upon different grounds and are distinct and independent defenses they are not necessarily incompatible, but may and sometimes do arise out of the same facts, as where the danger is not only known or obvious, but injury therefrom is so imminent that no person of ordinary prudence would assume the risk.

Where a servant knows and appreciates the danger of the act which he undertakes, he does not any the less assume the risk of injury or become chargeable with contributory negligence, as the case may be, because he undertakes it under the direction of his superior.

A brakeman, who, in the absence of an emergency justifying his action, participated in staking a car with full knowledge and appreciation of the danger, assumed the risk of injury although the conductor may have been negligent in directing that the car be staked when there was another and safe method of accomplishing the same result, and in directing the use of an engine and train in the process of staking when the use of the engine alone was reasonably possible and less dangerous and, where the danger was so imminent that no person of ordinary prudence would have assumed the risk, the brakeman was also guilty of contributory negligence.

The statute of Iowa (Code 1897, Sec. 2071) abrogates in respect of the 'use and operation of any railway' the common-law rule that an employe by his contract of employment assumes the risk of injury from the future negligence of a fellow servant; but it does not affect the rule that, where an employe undertakes an act the danger of which is obvious or actually known to him, and is inherent in the act itself or in the particular manner in which it is to be performed, he assumes the risk of injury, and this, although the danger may have arisen from the prior negligence of a co-employe.

Thomas D. Healy (M. F. Healy, D. M, Kelleher, A. G. Briggs, and John L. Erdall, on the brief), for plaintiff in error.

H. C. Kenline and J. J. McCarthy (R. P. Roedell, on the brief), for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges.

VAN DEVANTER, Circuit Judge.

This was an action to recover damages for the death of James J Crotty, a brakeman, which occurred while he was engaged, with others, in moving a car from one of two parallel side tracks to the other over a connecting switch by the process of staking, a term which indicates that the car was being pushed toward and over the switch by means of a pole placed between the car and a moving engine or train on the other track. The only negligence charged against the defendant which the evidence tended to sustain was that staking, although known to be dangerous, was resorted to when another and entirely safe method of moving the car was reasonably open, and that an engine and train were used in the staking when the use of the engine alone was reasonably possible and was known to be attended with less danger. That this constituted actionable negligence is not questioned. The defenses were assumption of risk and contributory negligence. The defendant, conceiving that both were conclusively established by the evidence, requested that the jury be instructed to return a verdict in its favor. The request was denied, and that ruling is assigned as error.

Without conflict, the evidence, and more especially that for the plaintiff, established these facts: A train crew, in which the deceased was a brakeman, had just brought a freight train, consisting of an engine and about seven cars, from Clarion, Iowa, to one of two side tracks in the defendant's switching yards at Coulter, in that state, when the station agent requested the crew to move a loaded coal car to that side track from the other one over a connecting switch. The crew, with the aid of a section gang, pushed the car by hand until it became stalled in a frog, or by ice which had formed in places along the rails. Under the conductor's direction the process of staking was then undertaken. The deceased procured an ordinary fence post from near by, placed one end of it against the caboose, which was the rear car in the freight train, and held the post so that the other end would come in contact with the coal car as the train moved backward toward the post came in contact with the coal the latter ran ahead a few feet more rapidly than the train was moving, the post slipped and fell, and the train was stopped at a signal from the conductor. In this first effort the post was applied to the corners of the cars in such manner that the deceased was not upon either track, but that was changed at the conductor's direction. One end was placed in the hollow of the coupler of the caboose, where it would not slip so easily, and the deceased took a position on the track in the rear of the caboose, or rather in front of it, considering the direction in which it was to move. The train was again put in motion, but the resistance offered by the coal car, by reason of the ice which had formed in places along the rails, was so variable that the car ran ahead a few feet every now and then, making it impossible to maintain the contact. The staking proceeded and the deceased walked along in front of the moving caboose, holding the post in position to keep it from falling as the coal car jumped from one icy place to another. By reason of the convergence of the tracks the coal car was gradually moved over in front of the caboose and the deceased came to occupy a position between the ends of these moving cars, the distance between which was seven feet, the length of the post. He remained in this exposed position, and the staking was continued, until the post slipped and fell. The cars then came together and he was crushed to death. The train was being moved backward as slowly as it well could be, and when the post slipped the engine was promptly stopped at an emergency signal from the conductor, but by reason of the slack in the train which was not unusual, the caboose did not stop until it came in contact with the coal car. The deceased made no objection to the staking of the car or to the part in it which was assigned to him. He was 28 years of age, was intelligent and well educated, and had had seven or eight years of experience as a switchman and brakeman. The accident occurred in the daytime.

There can be no difference of opinion among candid, reasonable and impartial men upon these facts. The dangers which inhered in the process of staking were obvious and easily capable of full appreciation; more than that, they were vividly illustrated to the deceased as the staking progressed and before he paid the awful penalty for disregarding them. He knew the particular conditions under which the staking was undertaken and continued. He saw and understood how many cars were in the train, how much slack there was in it, and how it was controlled, because he was one of the crew which brought it from the station where it was made up. He saw and understood the condition of the track which contributed to the irregular and jerky movement of the coal car. He saw and understood what character of post he was using. He saw and understood that the contact with the coal car could not be maintained, that the post was all that kept the cars from coming together and that it was inclined to slip and fall. In short, he knew whatever of defect there was in the method adopted, or in the appliances used, to transfer the car from one track to the other, and whatever of enhancement of the risk there was in the particular conditions under which the transfer was undertaken. It is idle to say that he may not have fully appreciated the dangers of the undertaking, or of his part in it. They were so obvious that their full appreciation was unavoidable to one of his years, intelligence, and experience. Thoughtful consideration of the undisputed facts irresistibly leads to the conclusion that he participated in the staking of the car with full knowledge and appreciation of its dangers and without objection, and that thereby he voluntarily assumed the risk of injury. Worden v. Humeston & Shenandoah Ry. Co., 72 Iowa, 201, 207, 33 N.W. 629; Cudahy Packing Co. v. Marcan, 106 F. 645, 45 C.C.A. 515, 54 L.R,A. 258; King v. Morgan, 48 C.C.A. 507, 109 F. 446; Musser-Sauntry Land, etc., Co. v. Brown, 61 C.C.A. 207, 126 F. 141; St. Louis Cordage Co. v. Miller, 126 F. 495, 61 C.C.A. 477, 63 L.R.A. 551; Glenmont Lumber Co, v, Roy, 61 C.C.A. 506, 126 F. 524.

While assumption of risk and contributory negligence rest upon different grounds and are distinct and independent defenses, they are not necessarily incompatible, but may and sometimes do arise out of the same facts, as where the danger is not only known or obvious, but injury therefrom is so imminent that no person of ordinary prudence would assume the risk. Musser-Sauntry Land, etc., Co. v. Brown, 61 C.C.A. 207, 126 F. 141; St. Louis Cordage Co. v. Miller, 126 F. 495, 502, 505, 61 C.C.A. 477, 484, 487, 63 L.R.A. 551. This case...

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