Choctaw, Oklahoma Gulf Railroad Company v. Laura Louise Dade

Decision Date02 November 1903
Docket NumberNo. 26,26
Citation24 S.Ct. 24,48 L.Ed. 96,191 U.S. 64
PartiesCHOCTAW, OKLAHOMA, & GULF RAILROAD COMPANY, Plff. in Err., v. LAURA LOUISE McDADE, Lucy W. McDade, and Kinney McDade, Defts. in Err
CourtU.S. Supreme Court


J. W. McLoud, Geo. B. Peters, E. E. Wright, and C. M. Bryan for plaintiff in error.

Messrs.G. T. Fitzhugh and J. H. Watson for defendants in error.

Mr. Justice Day delivered the opinion of the court:

This was an action to recover for the death, by wrongful act, of John I. McDade, an employee of the Choctaw, Oklahoma, & Gulf Railroad Company. The plaintiff recovered a judgment in the circuit court, which was affirmed in the court of appeals. 50 C. C. A. 591, 112 Fed. 888.

There was evidence tending to show that McDade, a brakeman in the employ of the company, was killed on the night of August 19, 1900, while engaged in the discharge of his duties as head brakeman on a car in one of the company's trains. McDade was at his post of duty, and, when last seen, was transmitting a signal from the conductor to the engineer to run past the station of Goodwin, Arkansas, which the train was then approaching. The train passed Goodwin at a rate of from 20 to 25 miles an hour. At Goodwin there was a water tank, having attached thereto an iron spout, which, when not in use, hung at an angle from the side of the tank. Shortly after passing Goodwin, McDade was missed from the train, and, upon search being instituted, his lantern was found near the place on the car where he was at the time of giving the signal. His body was found at a distance of about six hundred and seventy-five feet beyond the Goodwin tank. There was also testimony tending to show, from the location of the waterspout and the injuries upon the head and person of McDade, that he was killed as a result of being struck by the overhanging spout. The car upon which McDade was engaged at the time of the injury was a furniture car, wider and higher than the average car, and of such size as to make it highly dangerous to be on top of it at the place it was necessary to be when giving signals, in view of the fact that the spout cleared the car by less than the height of a man above the car when in position to perform the duties required of him.

There was no eyewitness as to the exact manner of the injury to McDade, and it is urged that the court below should have taken the case from the jury because of the lack of testi- mony upon this point. It was left to the jury under proper instructions to find whether McDade came to his death in the manner stated in the declaration, and the court distinctly charged that, unless satisfied of this, there could be no verdict against the railroad company. While the evidence was circumstantial, it was ample, in our opinion, to warrant the submission of this question to the jury under the instructions given. Furniture cars like the one on which McDade was riding were received and transported over this road. There is testimony tending to show that a proper construction of the tank and appliances required the spout to hang vertically when not in use, and other testimony to the effect that, when hung in this manner, it would be difficult, if not impossible, for the fireman to pull down the spout in taking water, and that to hang it at an angle is, at least, a more convenient method of adjustment. Be this as it may, the testimony makes it clear that in the proper construction of this appliance there is no necessity of bringing it so near to the car as to endanger brakemen working thereon. Whether hung at an angle or not, it can be so constructed as to leave such space between it and the top of the car as to make it entirely safe for brakemen in passing. The testimony makes it equally clear that, when on the furniture car, McDade, sitting at his post, would be likely to be struck by the spout in passing. It is undoubtedly true that many duties required of employees in the transaction of the business to be carried on by a railroad company are necessarily attended with danger, and can only be prosecuted by means which are hazardous and dangerous to those who see fit to enter into such employment. Where no necessity exists, as in the present case, for the use of dangerous appliances, and where it is a matter requiring only due skill and care to make the appliances safe, there is no reason why an employee should be subjected to dangers wholly unnecessary to the proper operation of the business of the employer. Kelleher v. Miluaukee & N. R. Co. 80 Wis. 584, 50 N.W. 942; Georgia P.R. Co. v. Davis, 62 Ala. 300, 9 So. 252; 1 Shearm & Redf. Neg. 5th ed. § 201, and cases cited.

We agree with the circuit court of appeals in affirming the instructions upon this subject given by Judge Hammond to the jury, in which he said: 'It is so simple a task, one so devoid of all exigencies of expense, necessity, or...

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