Chicago & N.W. Ry. Co. v. Davis

• Decision Date: 17 October 1892
• Docket Number: 84.
• Court: U.S. Court of Appeals — Eighth Circuit
• Parties: CHICAGO & N.W. RY. CO. v. DAVIS.

53 F. 61

CHICAGO & N.W. RY. CO. v. DAVIS.

No. 84.

United States Court of Appeals, Eighth Circuit.

October 17, 1892

Frank F. Dawley and J. C. Cook, (W. C. Goudy and N.M. Hubbard, on the brief,) for plaintiff in error.

Crom. Bowen, (J. R. Barcroft and O. M. Brockett, on the brief,) for defendant in error.

Before BREWER, Circuit Justice, and CALDWELL and SANBORN, Circuit judges.

SANBORN Circuit Judge.

The defendant in error, who was the plaintiff below, brought this action for the negligent killing of the deceased by the defendant railway company. The company, in its answer, denied negligence on its part, and alleged that the negligence of the deceased caused his death. The testimony was undisputed and established the following facts:

On July 11, 1888, the deceased was working as a section man for the defendant. He had been in its service in that capacity about two weeks, and on this day was one of a section gang of six men who were engaged in transporting railroad ties by means of a hand car and dump car along the line of the railroad to the point where they were to be used to repair it. Three of these men stood upon the forward end of the hand car, and three upon the rear end. The deceased was the middle one of the three standing upon the rear of the car. Dump cars ordinarily have no brake, and no means of fastening them to a hand car, and this one had none. In the forenoon of this day these men loaded 22 or 23 new cedar ties lengthwise upon the dump car, and hauled them about a mile and a half over a hilly road, when they unloaded them, removed the cars from the track, ate their dinner, then reloaded the dump car, and again proceeded on their way. In the morning, when the dump car was loaded, the section boss struck a pick into one of the ties near its forward end, so that its handle projected forward, and directed some one to take hold of the pick. The hand car was placed in front of the loaded dump car, and the deceased, standing on the rear end of the hand car, grasped its handle with his right hand to hold himself in position and took hold the dump car, and keep it at a proper distance from the hand car. They passed some rising grades in the forenoon, and there they got off and pushed the dump car because the propelling power of the hand car was not sufficient to haul it. After reloading the car in the afternoon, they proceeded in the same way, the deceased still grasping the handle of the hand car and the pick handle until, as they were passing down a descending grade, one or two of the ties and the pick fell off. When the ties fell, the boss applied the brake to the hand car, which diminished its speed, but he immediately saw that no more ties would fall, and released the brake. When he applied the brake, the dump car came up against the hand car so that the men standing on it felt it 'a little bit,' but neither the deceased nor any of the men on the car lost their balance on this account, or had any difficulty in keeping their places. When the brake was released, the hand car, which was moving about three or four miles an hour,--so slowly that the men could easily step from it to the ground without falling,--separated from 2 to 8 feet from the dump car. When the hand car had moved about 150 feet from the place where the ties and pick fell off, the deceased released his h old on the handle of the hand car, and went down between that and the dump car, where he was run over and killed by the latter. When the brake was let off, he had his right hand on the handle of the hand car, and as he released his hold and went down upon the roadbed he did not call out, or reach out his hand to grasp anything or any one, nor did he lose his balance or fall, but stood still, as if he had stepped down, or walked a step or two towards the dump car, until it struck him, and threw him under it.

At the close of the testimony the defendant requested the court to instruct the jury to return a verdict in its favor, but this was refused, and this refusal is one of the errors assigned. There was a verdict and judgment for plaintiff.

In providing his employes with a reasonably safe place in which to work, in supplying them with reasonably safe machinery and appliances with which to perform the service assigned to them, in the employment of competent men, and in the general conduct of his business, it is the duty of the employer to use that degree of care, commensurate with the character of his various operations, which an ordinarily prudent person would exercise under like circumstances in order to protect his employes from injury; and for any injury caused by his failure so to do he is liable in damages, provided the injured employe does not by his own negligence contribute to such injury. It is likewise the duty of the employe to exercise that degree of care, commensurate with the character of his occupation, which an ordinarily prudent person would employ under like circumstances in order to protect himself from injury, and, if he fails to exercise this care, he cannot recover for any injury to which his own negligence has contributed, even though his employer has failed to exercise due care. Where the injury results from the concurrent negligence of the employer and employe, the latter cannot maintain an action for damages resulting from it, because it is impracticable in the administration of justice to divide and apportion the compensation in proportion to the varying degrees of concurring negligence. If he voluntarily...