Cleveland, C., C. & St. L. Ry. Co. v. Baker

• Decision Date: 03 January 1899
• Docket Number: 520.
• Citation: 91 F. 224
• Parties: CLEVELAND, C., C. & ST. L. RY. CO. v. BAKER.
• Court: U.S. Court of Appeals — Seventh Circuit

91 F. 224

CLEVELAND, C., C. & ST. L. RY. CO. v. BAKER.

No. 520.

United States Court of Appeals, Seventh Circuit.

January 3, 1899

John T Dye, for plaintiff in error.

S. Z Landes, for defendants in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

This is an action of trespass on the case for personal injuries suffered by August Baker, the defendant in error, while in the employment of the Cleveland, Cincinnati, Chicago & St Louis Railway Company, the plaintiff in error, as a brakeman. The facts, in brief, as alleged in the declaration, are that on the 13th day of August, 1896, at Eldorado, Ill., while the plaintiff, as it became his duty to do, was attempting to uncouple two moving cars, a brake beam of the car behind him was pushed upon the heel of his right foot, with which he was stepping forward to keep pace with the cars, and the foot and leg were so crushed that amputation at the knee became necessary. In two of the five counts of the declaration it is alleged that the railway company, in disregard of its duty to keep its freight cars in good repair, and to have the brake beams thereon so adjusted as to be at all times at least 12 inches above the roadbed, or, as alleged in one count, seven inches above the rails, had negligently permitted the brake beam by which the plaintiff's foot was caught to hang within three inches of the roadbed, and that the plaintiff was ignorant of the defect, and was exercising due care for his own safety. In the other counts there is no averment that the brake beam was out of repair or misadjusted, but the substance of the charge is that the injury was caused by the failure of the company to equip its cars used in interstate commerce with grab irons, or hand holds, as required by the act of congress of March 2, 1893 (27 Stat. 531). Section 4 of the act declares it 'unlawful for any railroad company to use any car in interstate commerce that is not provided with secure grab irons or hand holds in the ends and sides of each car for greater security to men in coupling and uncoupling cars. ' The eighth section, transposed to make its meaning more clear, provides that an employe injured by a car not properly equipped, 'although continuing in the employment of such carrier after the unlawful use of such locomotive, car or train had been brought to his knowledge,' 'shall not be deemed thereby to have assumed the risk thereby occasioned. ' The entire section reads as follows: 'That any employe of any such common carrier who may be injured by any locomotive, car, or train in use contrary to the provision of this act shall not be deemed thereby to have assumed the risk thereby occasioned, although continuing in the employment of such carrier after the unlawful use of such locomotive, car, or train had been brought to his knowledge. ' Issue was joined by a plea of not guilty. Exceptions were saved, and error has been assigned upon the admission of testimony, and upon instructions given and refused. There was also a motion in arrest of judgment.

The motion in arrest might be disregarded, because not mentioned in the original brief for the plaintiff in error. In a supplemental brief it is urged that it ought to have been sustained, because the declaration shows contributory negligence on the part of the defendant in error, it being alleged in each count that the cars to be uncoupled were in motion, and no reason shown or necessity alleged for incurring the manifest danger involved in the attempt to uncouple cars in motion. The rate of motion is not alleged. It may have been very slow,-- not more than seemed to be necessary to make the uncoupling possible. It is alleged that it was the plaintiff's 'duty to uncouple the cars while they were being propelled over the line of road,' and that he was 'in the exercise of due care for his own safety,' and the mere fact that the cars were in motion does not compel or justify the legal conclusion that he was at the same time acting negligently, or voluntarily assuming the risk incurred.

The plaintiff admitted knowledge of a rule of the company which in effect, forbade the coupling or uncoupling of cars while in motion, but, for the purpose of showing that the rule had been waived by the company, introduced, over objection and exception by the plaintiff in error, the testimony of a number of brakemen of the company to the effect that the witnesses were accustomed to couple and uncouple cars in motion, that other brakemen did so, and...