Chicago, R.I. & P. Ry. Co. v. Linney, 333.

• Decision Date: 04 December 1893
• Docket Number: 333.
• Parties: CHICAGO, R. I. & P. RY. CO. v. LINNEY. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

59 F. 45

CHICAGO, R. I. & P. RY. CO. v. LINNEY. ^[1]

No. 333.

United States Court of Appeals, Eighth Circuit.

December 4, 1893

W. F Evans and Frank P. Sebree, (M. A. Low and H. C. McDougal, on the brief,) for plaintiff in error.

E. H Stiles, (E. M. Harber and G. A. Knight, on the brief,) for defendant in error.

Before CALDWELL and SANBORN, Circuit Judges.

SANBORN Circuit Judge.

At Eldon, in the state of Iowa, between 3 and 4 o'clock in the morning of November 20, 1890, Robert T. Linney, the defendant in error, who was a brakeman in the employment of the plaintiff in error, the Chicago, Rock Island & Pacific Railway Company, was crushed between the tender of an engine and a box car, while attempting to couple them together. For this injury he recovered a verdict and judgment against the company for $11,000, on the ground that the latter negligently furnished a box car, the stem of the drawhead of which was so short or so loose that, when the drawhead was struck by another car or engine, it would not project and hold the box car a sufficient distance apart from the approaching car or engine to enable the brakeman to stand between them to make the coupling, as such drawheads ought to and usually do, but that it would slide back until the approaching car or engine would crush the brakeman who attempted to couple them in the usual manner. The defenses pleaded in the answer were no negligence on the part of the company, full knowledge of the defect, and of the dangers and risks from it, and an assumption of these dangers and risks by the defendant in error, and that his injuries were caused by his own carelessness. The box car on which this defective drawbar was found must have been hauled into Eldon by the Rock Island Company, for it appears from the record that no other company had or operated a railroad through that town. The car was a Merchants' Dispatch car,--such a car as requires, and is usually provided with, a longer stem for its drawhead than those used on the cars of the Rock Island Company. But the evidence tended to show that there was one of the short Rock Island stems of this company upon the drawhead of this car. Until the defendant in error had occasion to couple the engine to this car, he had not seen, or had any opportunity to see or examine, the car or its drawbar. He made the attempt to couple them in the darkness of the night, and testified that the drawhead looked right, and he saw no defect in it, as he stepped in to make the coupling. In fact, the stem of the drawhead was so short that it permitted the engine and car to come into such close proximity that they crushed the defendant in error, when, if the stem had been of proper length and properly fastened, it would have held them apart, and he would have made the coupling in safety. Two, or three of the trainmen testified that they discovered the defective condition of this drawbar, and gave notice of it to the defendant in error just before the accident; but he denied that he ever had any knowledge or notice of the defect from any of these witnesses, or otherwise, before the accident, and the jury have found in his favor upon this issue.

The first error assigned, and the one chiefly relied on in this case, is that the court below charged the jury as follows, without inserting in the charge the words inclosed in brackets, when it should have inserted them, and should have given to the jury the qualification of the charge they express: 'If you find from the evidence in the case that the coupling apparatus of the car in question was defective, as claimed by plaintiff's attorneys, and in the respects which I have just described, and if you furthermore find from the evidence that such defect in the coupling apparatus rendered the act of coupling an engine to the car in question more than ordinarily dangerous, and that such defect was the sole cause of the injury which plaintiff has sustained, and that the defect and the danger attending the coupling of the car was not known to, [and could not, by the exercise of ordinary care and prudence, have been discovered before the accident by,] the plaintiff when he attempted to make the coupling in question, then the plaintiff will be entitled to recover, provided you further believe and find from the evidence that such defect as existed in the coupling apparatus was either known to the defendant's car inspectors, whose duty it was to inspect the car in question before the accident happened, or that, in the exercise of ordinary care and diligence on their part, the defect in question ought to have been discovered by them, and to have been repaired, before the plaintiff was hurt.'

It goes without saying that it is the general rule that the servant assumes the ordinary risks and dangers of the employment upon which he enters, not only so far as they are known to him but also so far as they would have been known to one of ordinary prudence and sagacity in his situation, by the exercise of ordinary care. Manufacturing Co. v. Erickson, 5 C. C. A. 341, 55 F. 943, 946; Fuel Co. v. Danielson, 57 F. 915. Moreover, this rule should be carefully given to the jury in the charge of the court, in every case in...